UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Pamet Systems, Inc.
---------------------------------
(Name of Issuer)
Common Stock
---------------------------------
(Title of Class of Securities)
697640 10 0
---------------------------------
(CUSIP Number)
Bruce J. Rogow
Winnie R. Rogow
220 Ocean Avenue
Marblehead, MA 01945
(617) 631-4234
---------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 2, 1998
---------------------------------
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this statement because of Rule 13d-1(b) (3) or (4), check the
following: [ ].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 697640 10 0
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bruce J. Rogow SSN: ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
25,000
8 SHARED VOTING POWER
451,250
9 SOLE DISPOSITIVE POWER
25,000
10 SHARED DISPOSITIVE POWER
451,250
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
476,250
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.9%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 697640 10 0
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Winnie R. Rogow SSN: ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
4,000
8 SHARED VOTING POWER
451,250
9 SOLE DISPOSITIVE POWER
4,000
10 SHARED DISPOSITIVE POWER
451,250
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
455,250
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.1%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Amendment No. 2 to Schedule 13D
Pamet Systems, Inc.
This Amendment No. 2 to Schedule 13D amends and supplements the
Statement on Schedule 13D relating to the event date of January 6, 1997 filed
by Bruce J. Rogow and Winnie R. Rogow (collectively, the "Reporting Persons")
relating to the common stock (the "Common Stock") of Pamet Systems, Inc. (the
"Company"). The address of the principal executive office of the Company is
1000 Main Street, Acton, Massachusetts 01720.
Item 3. Source and Amount of Funds.
Item 3 is hereby amended to add the following:
The source of funds used by the Reporting Persons to purchase the
Common Stock referred to In Item 5(c) was personal funds. The amount of
funds used by the Reporting Persons to purchase the Common Stock is $531,250,
which was paid in cash and by cancellation of promissory notes of the Issuer
held by the Reporting Persons in the aggregate amount of $300,000 together
with all accrued and unpaid interest thereon.
Item 5. Interest in Securities of Issuer.
Item 5 is hereby amended and restated to read in its entirety as
follows:
(a) Mr. Rogow is the beneficial owner of 476,250 shares (18.9%)
of Common Stock.
Mrs. Rogow is the beneficial owner of 455,250 shares (18.1%) of
Common Stock.
The Common Stock beneficially owned by the Reporting Persons
includes: (i) 5,000 shares of Common Stock held by Mr. Rogow's 401(k)
account, (ii) 20,000 shares held by Mr. Rogow's retirement money purchase
account, (iii) 95,000 shares of Common Stock held jointly, (iv) 4,000 shares
held by Mrs. Rogow as custodian for Mr. and Mrs. Rogow's minor child, (v)
325,000 shares of Common Stock held by Rogow Opportunity Capital, LLC, a
Massachusetts limited liability company ("Rogow Opportunity") of which Mr.
and Mrs. Rogow are the sole members. and (vi) warrants (the "Warrants") held
by Rogow Opportunity exercisable at any time or from time to time prior to
March 2, 2003 to purchase up to 31,250 shares of Common Stock at an exercise
price of $4.25 per share.
The number of shares beneficially owned by the Reporting Persons and
the percentage of outstanding shares represented thereby have been computed
in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as
amended. There were 2,485,000 shares of Common Stock of the Company
outstanding as of March 4, 1998 as reported to the Reporting Persons by an
officer of the Company.
<PAGE>
(b) Mr. Rogow has the sole power (i) to vote or to direct the
voting of and (ii) to dispose and to direct the disposition of the 25,000
shares of Common Stock held directly in his 401(k) and retirement money
purchase accounts.
Mrs. Rogow has the sole power (i) to vote or to direct the voting of
and (ii) to dispose and to direct the disposition of the 4,000 shares of
Common Stock held by her as custodian.
Mr. and Mrs. Rogow share the power (i) to vote or to direct the
voting of the 95,000 shares of Common Stock held jointly by them and (ii) to
dispose and to direct the disposition of (x) the 95,000 shares of Common
Stock held jointly by them and (y) the 325,000 shares of Common Stock held by
Rogow Opportunity and the Warrants and the shares issuable upon exercise
thereof.
(c) The only transaction in the last 60 days by the Reporting
Persons in the Common Stock was the purchase by Rogow Opportunity from the
Company in a privately negotiated purchase on March 2, 1998 of 125,000 units,
each unit representing (i) one share of Common Stock and (ii) a warrant to
purchase one quarter of a share of Common Stock at an exercise price of $4.25
per share in consideration of $531,250 pursuant to a Securities Purchase
Agreement dated as of March 2, 1998 (the "Securities Purchase Agreement").
(d) Not applicable.
(e) Not applicable.
Item 7. Material to be Filed as Exhibits.
Exhibit A. Securities Purchase Agreement
<PAGE>
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
Dated: March ___, 1998
____________________________
Bruce J. Rogow
____________________________
Winnie R. Rogow
<PAGE>
EXHIBIT A
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of March 2, 1998 by and between PAMET SYSTEMS, INC., a
Massachusetts corporation whose principal place of business is 1000 Main
Street, Acton, Massachusetts 01720 (the "Company"), and Rogow Opportunity
Capital LLC, a Massachusetts company whose principal place of business is 220
Ocean Avenue, Marblehead, Massachusetts 01945 (the "Purchaser").
WHEREAS, the Company is desirous of selling, and the Purchaser is
desirous of acquiring, (i) one hundred twenty-five thousand shares (125,000)
(the "Shares") of the common stock, par value $.01 per share (the "Common
Stock"), of the Company and (ii) a five-year warrant (the "Warrant") in
substantially the form attached hereto as Exhibit A to purchase up to
thirty-one thousand two hundred fifty (31,250) additional shares (the
"Warrant Shares") of Common Stock (the Shares and the Warrant together
sometimes hereinafter are referred to as the "Securities"), on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and of the mutual
obligations hereinafter set forth, and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES AND WARRANT; CLOSING
Section 1.01 Purchase and Sale of the Shares and Warrant. Subject
to the terms and conditions set forth in this Agreement, the Company agrees
to issue and sell to the Purchaser, and the Purchaser agrees to purchase from
the Company, the Shares and the Warrant for an aggregate purchase price of
Five Hundred Thirty-one Thousand Two Hundred Fifty Dollars ($531,250), based
on a purchase price of $4.25 for each unit comprised of (a) one Share and (b)
the right to acquire one quarter of a Warrant Share under the Warrant (the
"Purchase Price").
Section 1.02 (a) Closing. The sale of the Securities by the
Company to the Purchaser shall take place on March 2, 1998 at the offices of
the Company or at such other place and time as may be agreed upon by the
Purchaser and the Company (the "Closing"). At the Closing, the Company shall
deliver to the Purchaser certificates evidencing the Securities against
payment of the Purchase Price for the Securities, by certified or official
bank check or wire transfer of immediately available funds to an account
designated by the Company or by application of the principal and unpaid
interest on the Company's notes dated January 5, 1998 and January 30, 1998
payable to the Purchaser.
(2) Fairness Opinion. Prior to closing the Company shall have
received an opinion of Wendell Minnick that the issuance of the Securities on
the terms set forth herein is fair to the Company from a financial point of
view.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees with, the
Purchaser, as of the date hereof and as of the Closing, as follows:
Section 2.01 Incorporation and Corporate Existence. The Company
is a corporation duly incorporated, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts and has all necessary
corporate power and authority to own, operate or lease the properties and
assets now owned, operated or leased by the Company and to carry on the
business of the Company, as it is now being conducted.
Section 2.02 Authority. The Company has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The Company has taken all necessary
corporate action to authorize the execution, delivery and performance by it
of this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Company and, and
assuming due execution and delivery of the Agreement by the Purchaser, this
Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to the
effect of any applicable bankruptcy, reorganization, insolvency (including,
without limitation, all laws relating to fraudulent transfers), moratorium or
similar laws affecting creditors' rights and remedies generally, subject, as
to enforceability, to the effect of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law) and subject to the effect of applicable securities laws as to rights to
indemnification. The Company is not now, and has not been since inception
(x) in bankruptcy or reorganization, (y) subject to moratorium or similar
laws affecting creditors' rights and remedies generally or (z) to the best
knowledge of the Company, a party to any fraudulent transfer.
Section 2.03 Consents and Approvals; No Conflict. The execution
and delivery of this Agreement by the Company do not, and the performance of
this Agreement by the Company will not (i) require any consent, approval,
authorization or other action by, or filing with or notification to, any
governmental or regulatory authority, except where failure to obtain such
consent, approval, authorization or action, or to make such filing or
notification, would not prevent the Company from performing any of its
material obligations under this Agreement and would not have a material
adverse effect on the Company; (ii) conflict with or violate the charter or
by-laws of the Company; or (iii) except as would not prevent the Company from
performing any of its material obligations under this Agreement and would not
have a material adverse effect on the Company, conflict with or violate any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to the Company.
Section 2.04 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to, and agrees with, the
Company, as of the date hereof and as of the Closing, as follows:
Section 3.01 Authority. The Purchaser has all necessary power and
authority to execute and deliver this Agreement, to purchase the Securities
from the Company and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Purchaser and, and
assuming due authorization, execution and delivery of the Agreement by the
Company, this Agreement constitutes a legal, valid and binding obligation of
the Purchaser enforceable against the Purchaser in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), moratorium or similar laws affecting creditors' rights and
remedies generally, subject, as to enforceability, to the effect of general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and subject to the effect of applicable
securities laws as to rights to indemnification.
Section 3.02 Consents and Approvals; No Conflict. The execution
and delivery of this Agreement by the Purchaser do not, and the performance
of this Agreement by the Purchaser will not (i) require any consent,
approval, authorization or other action by, or filing with or notification
to, any governmental or regulatory authority, except (x) for a Form 4 and an
amended Schedule 13D (or other appropriate form) of the Purchaser or an
affiliate of the Purchaser, which Form 4 and amended Schedule 13D (or other
appropriate form) will be promptly filed by or on behalf of the Purchaser
after the Closing, or (y) where the failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, would not
prevent the Purchaser from performing any of his material obligations under
this Agreement; or (ii) except as would not prevent the Purchaser from
performing any of his material obligations under this Agreement, conflict
with or violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award applicable to the Purchaser.
Section 3.03 Absence of Litigation. No claim, action, proceeding
or investigation is pending, or to the best knowledge of the Purchaser,
threatened, which seeks to delay or prevent the consummation of the
transactions contemplated hereby or which would be reasonably likely to
adversely affect or restrict the Purchaser's ability to consummate the
transactions contemplated hereby.
Section 3.04 Investment Purpose; Legend; Private Placement.
(1) The Purchaser is acquiring the Securities solely for the
purpose of investment and not with a view to, or for offer or sale in
connection with, any distribution thereof.
(2) The Purchaser acknowledges that neither the Securities nor
the Warrant Shares are registered under the Securities Act and that none of
the Securities or the Warrant Shares may be transferred or sold except
pursuant to the registration provisions of the Securities Act or pursuant to
an applicable exemption therefrom and subject to state securities laws and
regulations, as applicable. The Purchaser acknowledges that the certificates
evidencing the Securities and the Warrant Shares shall contain a legend
substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND SUCH SECURITIES
MAY NOT BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN
EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY (WHICH ACCEPTANCE
SHALL NOT BE UNREASONABLY WITHHELD) THAT SUCH REGISTRATION IS NOT
REQUIRED.
(3) The Purchaser acknowledges that the Securities involve a
great deal of risk and that there is a limited market for the Securities and
the Warrant Shares. The Purchaser is able to (i) bear the economic risk of
the investment in the Company, (ii) afford a complete loss of such
investment, and (iii) hold indefinitely the Securities. In reaching an
informed decision to invest in the Company, the Purchaser, one of whose
principals is a director of the Company, has sufficient information to
evaluate the merits and risks of an investment in the Securities of the
Company. In that connection, in addition to such principal's participation
in the Company's Board meetings since May 1997, (x) the Purchaser has
received (A) the Company's proxy statement, dated April 30, 1997, for the
Company's 1997 annual meeting of stockholders, (B) the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1996, as amended to
date, and (C) the Company's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997 and (y)
representatives of the Company have (A) fully and satisfactorily answered any
questions which duly authorized representatives of the Purchaser desired to
ask concerning the Company, and (B) furnished the Purchaser with any
additional information or documents requested to verify the accuracy of or
supplement any information previously delivered to or discussed with duly
authorized representatives of the Purchaser.
(4) The residence of the Purchaser set forth on page 1 of this
Agreement is the true and correct residence of the Purchaser and the
Purchaser has no present intention of becoming a resident or domiciliary of
any other state or jurisdiction.
Section 3.05 Accredited Investor. The Purchaser is an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated under
the Securities Act because (please check as appropriate):
[ ] (1) the Purchaser is an individual whose net worth,
either individually or with his spouse, exceeds
$1,000,000 on the date hereof;
[ ] (2) the Purchaser is an individual whose individual
income exceeded $200,000 in each of the two previous
years or whose joint income with his spouse exceeded
$300,000 in each of the three previous years, and has
a reasonable expectation of reaching the same income
level in the current year;
[ ] (3) the Purchaser is a corporation, partnership or
Massachusetts or similar business trust, not formed
for the specific purpose of acquiring the Units, with
total assets in excess of $5,000,000; or
[ ] (4) the investor hereby certifies that it is an
accredited investor because it is an entity in which
each of the equity owners qualifies as an accredited
investor under items (a), (b) or (c) above.
Section 3.06 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
ARTICLE IV
RIGHT OF FIRST REFUSAL
Section 4.01 Three Year Right of First Refusal.
(1) If at any time prior to the third anniversary of the date
hereof the Purchaser receives a bona fide offer from an unaffiliated third
party in writing (an "Offer") to purchase any or all of the Securities or the
Warrant Shares owned by the Purchaser (the "Offered Securities"), which the
Purchaser desires to accept, then the Purchaser shall give the Company (i)
written notice (the "Notice") of the name and address of the person who made
the Offer (the "Proposed Acquiror") and (ii) a copy of the Offer, containing
all of the material terms and conditions thereof, including (A) the number of
Offered Securities to be purchased, (B) the price per Offered Share to be
paid, (C) the terms and conditions of payment offered by the Proposed
Acquiror and (D) the date and location of and procedures for selling
Securities to the Proposed Acquiror.
(2) The Company shall have the irrevocable right of first refusal
for a period of 21 days after its receipt of the Notice to purchase the
Offered Securities. Notwithstanding the foregoing, nothing in this Agreement
shall be deemed to require the Company to purchase any of the Offered
Securities. The Company may exercise its right of first refusal pursuant to
this Section 4.01(b) to purchase the Offered Securities by notifying the
Purchaser in writing within the 21-day period as set forth in this Section
4.01(b) of its intention to purchase all, but not less than all, of the
Offered Securities, for the price and upon the terms and conditions of the
Offer, all as specified in the Notice. The Company's purchase of any Offered
Securities shall be approved by a resolution of the Board.
(3) The closing of the purchase of Offered Securities by the
Company shall be consummated 60 days after the date of the Notice at the
offices of the Company or at such other place and time as may be agreed upon
by the Purchaser and the Company (the "Offered Share Closing"). At the
Offered Share Closing, the Purchaser shall deliver to the Company a
certificate evidencing the Offered Securities, which Offered Securities shall
be free and clear of all liens, claims and encumbrances. In accordance with
the terms and conditions set forth in the Notice, the Company shall pay or
cause to be paid to the Purchaser the full purchase price for the Offered
Securities.
(4) In the event the Company does not exercise its right of first
refusal to purchase all of the Offered Securities, the Purchaser shall have
the right for a period of 60 days after the date of the Notice to sell to the
Proposed Acquiror all, but not less than all, of the Offered Securities, at
the price and upon the terms and conditions specified in the Notice. In the
event the Purchaser (i) proposes to sell any of the Securities other than in
accordance with the preceding sentence or (ii) does not sell all of the
Offered Securities to the Proposed Acquiror within such 60-day period, then
prior to any sale or transfer of such Securities, the Purchaser shall be
required first to offer such Securities to the Company in the manner provided
in this Section 4.01.
ARTICLE V
MISCELLANEOUS
Section 5.01 Expenses. The Purchaser hereby agrees that all fees
and expenses incurred by the Purchaser in connection with this Agreement
shall be borne by the Purchaser, and the Company hereby agrees that all fees
and expenses incurred by the Company shall be borne by the Company, in each
case including without limitation all fees and expenses of such party's
counsel and accountants.
Section 5.02 Public Announcements. Except as required by law,
neither the Company nor the Purchaser shall make any public announcements in
respect of this Agreement or the transactions contemplated herein or
otherwise communicate with any news media without prior notification to the
other party.
Section 5.03 Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution
and delivery of this Agreement, the Closing and any investigation at any time
made by or on behalf of either party hereto.
Section 5.04 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes any prior oral or written agreement between the
parties.
Section 5.05 No Third-Party Beneficiaries; Assignment. This
Agreement is for the sole benefit of and binding upon the parties hereto and
their permitted successors and assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns, and shall inure
to the benefit of and be enforceable by the parties hereof and their
respective successors and assigns.
Section 5.06 Amendment. This Agreement may be amended or modified
only by an instrument in writing signed by the Company and the Purchaser.
Section 5.07 Counterparts. This Agreement may be executed in one
or more counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
Section 5.08 Gender and Number; Headings. Whenever used in this
Agreement, the singular number shall include the plural, the plural the
singular, and the use of any gender shall be applicable to all genders. The
headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement
Section 5.09 Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the laws of the Commonwealth
of Massachusetts without giving effect to the principles of conflicts of laws
thereof. The Company and the Purchaser hereby consent to the jurisdiction of
the state and federal courts of the Commonwealth of Massachusetts for all
disputes arising under this Agreement.
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Agreement to be executed as of the date first written above.
Attest:__________________________ By:_____________________________
Name: Richard C. Becker Name: Joel B. Searcy
Title: Vice President Title: Chairman
Corporate Seal
ROGOW OPPORTUNITY CAPITAL LLC
By:_____________________________
Name: Winnie R. Rogow
Title: Manager
By:_____________________________
Name: Bruce J. Rogow
Title: Manager
<PAGE>
EXHIBIT A
FORM OF WARRANT
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND
NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION
SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY (WHICH ACCEPTANCE SHALL NOT BE UNREASONABLY
WITHHELD) THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on March 2, 2003.
WARRANT TO PURCHASE COMMON STOCK
OF
PAMET SYSTEMS, INC.
FOR VALUE RECEIVED, PAMET SYSTEMS, INC. (the "Company"), a
Massachusetts corporation, hereby certifies that Rogow Opportunity Capital
LLC, a Massachusetts company, or its permitted assigns, is entitled to
purchase from the Company, at any time or from time to time commencing March
2, 1998, and prior to 5:00 P.M., Eastern Standard Time, on March 2, 2003, a
total of thirty-one thousand two hundred fifty (31,250) fully paid and
nonassessable shares of Common Stock, par value $.01 per share, of the
Company for an aggregate purchase price of $132,812.50 (computed on the basis
of $4.25 per share). (Hereinafter, (i) said Common Stock, together with any
other equity securities which may be issued by the Company with respect
thereto or in substitution therefor, is referred to as the "Common Stock,"
(ii) the shares of the Common Stock purchasable hereunder are referred to as
the "Warrant Shares," (iii) the aggregate purchase price payable hereunder
for the Warrant Shares is referred to as the "Aggregate Warrant Price," (iv)
the price payable hereunder for each of the Warrant Shares is referred to as
the "Per Share Warrant Price," (v) this Warrant, and all warrants hereafter
issued in exchange or substitution for this Warrant are referred to as the
"Warrant" and (vi) the holder of this Warrant is referred to as the
"Holder.") The number of Warrant Shares for which this Warrant is
exercisable is subject to adjustment as hereinafter provided. In the event
of any such adjustment, the Per Share Warrant Price shall be adjusted by
multiplying the Per Share Warrant Price in effect immediately prior to such
adjustment by a fraction the numerator of which is the aggregate number of
Warrant Shares for which this Warrant may be exercised immediately prior to
such adjustment and the denominator of which is the aggregate number of
Warrant Shares for which this Warrant may be exercised immediately after such
adjustment.
1. Exercise of Warrant. This Warrant may be exercised, in whole at any
time or in part from time to time, commencing March 2, 1998, and prior to
5:00 P.M., Eastern Standard Time, on March 2, 2003, by the Holder of this
Warrant by the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Subsection 9(a) hereof,
together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part.
The Aggregate Warrant Price or Per Share Warrant Price may be paid:
(a) in cash, (b) by surrender to the Company of shares of its Common Stock
with a fair value, on the date of exercise that is equal to the Aggregate
Warrant Price or Per Share Warrant Price, as the case may be, in respect of
the number of Warrants exercised, (c) by surrender to the Company of Warrants
(as provided below) or (d) by a combination of (a), (b) or (c) hereof. The
Holder shall have the right to convert Warrants or any portion thereof (the
"Conversion Right") into Warrant Shares as provided in this paragraph, but
only if, at the time of such conversion, the Per Share Warrant Price shall be
less than the current market price per share of Common Stock and the Warrants
shall otherwise be exercisable under the provisions of this Warrant. Upon
exercise of the Conversion Right with respect to a particular number of
Warrants (the "Converted Warrants"), the Company shall deliver to the Holder
(without payment by the Holder of any cash or other consideration) that
number of Warrant Shares equal to the quotient obtained by dividing (a) the
difference between (i) the product of the fair value per share of Common
Stock as of the date the Conversion Right is exercised (the "Conversion
Date") and the number of Warrant Shares into which the Converted Warrants
could have been exercised hereunder and (ii) the aggregate Per Share Warrant
Price that would have been payable upon such exercise of the Converted
Warrants as of the Conversion Date, by (b) the fair value per share of Common
Stock as of the Conversion Date. For purposes of this paragraph, the fair
value per share of Common Stock shall mean the average Closing Price of the
Common Stock for the ten Trading Days immediately preceding the Conversion
Date.
As used in this Section 1, Trading Day means, in the event that the
Common Stock is listed or admitted to trading on the New York Stock Exchange
(or any successor to such exchange), a day on which the New York Stock
Exchange (or such successor) is open for the transaction of business, or, if
the Common Stock is not listed or admitted to trading on such exchange, a day
on which the principal national securities exchange on which the Common Stock
is listed is open for the transaction of business, or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, a day
on which any New York Stock Exchange member firm is open for the transaction
of business.
As used in this Section 1, the Closing Price of the Company's Common
Stock shall be the last reported sale price as shown on the Composite Tape of
the New York Stock Exchange, or, in case no such reported sale price is
quoted on such day, the average of the reported closing bid and asked prices
on the New York Stock Exchange, or, if the Common Stock is not listed or
admitted to trading on such exchange, the last reported sales price, or in
case no such reported sales price is quoted on such day, the average of the
reported closing bid and asked prices, on the principal national securities
exchange (including, for purposes hereof, the National Association of
Securities Dealers, Inc. National Market System) on which the Common Stock is
listed or admitted to trading, or, if it is not listed or admitted to trading
on any national securities exchange, the average of the high closing bid
price and the low closing asked price as reported on an inter-dealer
quotation system. In the absence of any available public quotations for the
Common Stock, the Board of Directors of the Company shall determine in good
faith the fair value of the Common Stock, which determination shall be set
forth in a certificate by the Secretary of the Company.
Payment for Warrant Shares if made by cash shall be made by certified
or official bank check payable to the order of the Company. If this Warrant
is exercised in part, the Holder shall be entitled to receive a new Warrant
covering the number of Warrant Shares in respect of which this Warrant has
not been exercised and setting forth the proportionate part of the Aggregate
Warrant Price applicable to such Warrant Shares. Upon such surrender of this
Warrant, the Company will (a) issue a certificate or certificates in the name
of the Holder for the shares of the Common Stock to which the Holder shall be
entitled, and (b) deliver the proportionate part thereof if this Warrant is
exercised in part, pursuant to the provisions of the Warrant.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. With respect to any fraction of a
share called for upon any exercise hereof, the Company shall pay to the
Holder an amount in cash equal to such fraction multiplied by the fair value
of a share.
2. Reservation of Warrant Shares. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and
in reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock as from time to time
shall be receivable upon the exercise of this Warrant.
3. Anti-Dilution Provisions.
(a) In case the Company shall hereafter (i) pay a dividend or
make a distribution on its capital stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares or (iv) issue by reclassification of its Common Stock any
shares of capital stock of the Company, the number of Warrant Shares for
which this Warrant may be exercised shall be adjusted so that if the Holder
surrendered this Warrant for exercise after such action the Holder would be
entitled to receive the number of shares of Common Stock or other capital
stock of the Company which he would have been entitled to receive had such
Warrant been exercised immediately prior to such action. An adjustment made
pursuant to this subsection (a) shall become effective immediately after the
record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification. If, as a result of an adjustment made
pursuant to this subsection (a), the Holder of this Warrant shall become
entitled to receive shares of two or more classes of capital stock or shares
of Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in
a written notice to the Holder of this Warrant promptly after such
adjustment) shall determine the allocation of the adjusted Per Share Warrant
Price between or among shares of such classes of capital stock or shares of
Common Stock and other capital stock.
(b) In case of any consolidation or merger to which the Company
is a party other than a merger or consolidation in which the Company is the
continuing corporation, or in case of any sale or conveyance to another
entity of the property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), the holder shall have the right
thereafter to exercise this Warrant for the kind and amount of securities,
cash or other property which he would have owned or have been entitled to
receive immediately after such consolidation, merger, statutory exchange,
sale or conveyance had such Warrant been exercised immediately prior to the
effective date of such consolidation, merger, statutory exchange, sale or
conveyance and in any such case, if necessary, appropriate adjustment shall
be made in the application of the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holder to the end that
the provisions set forth in this Section 3 shall thereafter correspondingly
be made applicable, as nearly as may reasonably be, in relation to any shares
of stock or other securities or property thereafter deliverable on the
conversion of this Warrant. The above provisions of this subsection (b)
shall similarly apply to successive consolidations, mergers, statutory
exchanges, sales or conveyances. Notice of any such consolidation, merger,
statutory exchange, sale or conveyance and of said provisions so proposed to
be made, shall be mailed to the Holder not less than 30 days prior to such
event. A sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
(c) Whenever the Per Share Warrant Price is adjusted as provided
in this Warrant and upon any modification of the rights of the Holder of this
Warrant in accordance with this Section 3, the Company shall promptly prepare
a certificate of an officer of the Company, setting forth the Per Share
Warrant Price and the number of Warrant Shares after such adjustment or
modification, a brief statement of the facts requiring such adjustment or
modification and the manner of computing the same and cause a copy of such
certificate to be mailed to the Holder.
4. Fully Paid Stock; Taxes. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the proper exercise of this Warrant shall, at the time of such
delivery, be validly issued and outstanding, fully paid and nonassessable,
and not subject to preemptive rights, and the Company will take all such
actions as may be necessary to assure that the par value or stated value, if
any, per share of the Common Stock is at all times equal to or less than the
then Per Share Warrant Price. Subject to Section 5(e) hereof, the Company
further covenants and agrees that it will pay, when due and payable, any and
all Federal and state stamp, original issue or similar taxes that may be
payable in respect of the issuance of any Warrant Shares or certificates
therefor. The Holder covenants and agrees that it shall pay, when due and
payable, any and all federal, state and local income or similar taxes that
may be payable in respect of the issuance of any Warrant Shares or
certificates therefor.
5. Transfer
(a) Securities Laws. Neither this Warrant nor the Warrant Shares
issuable upon the exercise hereof have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), or under any state securities
laws and unless so registered may not be transferred, sold, pledged,
hypothecated or otherwise disposed of unless an exemption from such
registration is available. In the event the Holder desires to transfer this
Warrant or any of the Warrant Shares issued, the Holder must give the Company
prior written notice of such proposed transfer including the name and address
of the proposed transferee. Such transfer may be made only either (i) upon
publication by the Securities and Exchange Commission (the "Commission") of a
ruling, interpretation, opinion or "no action letter" based upon facts
presented to said Commission, or (ii) upon receipt by the Company of an
opinion of counsel acceptable to the Company to the effect that the proposed
transfer will not violate the provisions of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the
rules and regulations promulgated under either such act, or to the effect
that the Warrant or Warrant Shares to be sold or transferred have been
registered under the Securities Act of 1933, as amended, and that there is in
effect a current prospectus meeting the requirements of Subsection 10(a) of
the Securities Act, which is being or will be delivered to the purchaser or
transferee at or prior to the time of delivery of the certificates evidencing
the Warrant or Warrant Shares to be sold or transferred.
(b) Conditions to Transfer. Prior to any such proposed transfer
(including, without limitation, a transfer by will or pursuant to the laws of
descent and distribution), and as a condition thereto, if such transfer is
not made pursuant to an effective registration statement under the Securities
Act, the Holder will, if requested by the Company, deliver to the Company (i)
an investment covenant, in form and substance equivalent to that signed by
the original Holder of this Warrant, signed by the proposed transferee, (ii)
an agreement by such transferee to the restrictive investment legend set
forth herein on the certificate or certificates representing the securities
acquired by such transferee, (iii) an agreement by such transferee that the
Company may place a "stop transfer order" with its transfer agent or
registrar, and (iv) an agreement by the transferee to indemnify the Company
to the same extent as set forth in the next succeeding paragraph.
(c) Indemnity. The Holder acknowledges that the Holder
understands the meaning and legal consequences of this Section 5, and the
Holder hereby agrees to indemnify and hold harmless the Company, its
representatives and each officer and director thereof from and against any
and all loss, damage or liability (including all attorneys' fees and costs
incurred in enforcing this indemnity provision) due to or arising out of (a)
the inaccuracy of any representation or the breach of any warranty of the
Holder contained in, or any other breach by the Holder of, this Warrant, (b)
any transfer of the Warrant or (c) any untrue statement or omission to state
any material fact in connection with the investment representations or with
respect to the facts and representations supplied by the Holder to counsel to
the Company upon which its opinion as to a proposed transfer shall have been
based.
(d) Transfer. Upon surrender of this Warrant to the Company or
at the office of its stock transfer agent, if any, with assignment
documentation duly executed and funds sufficient to pay any transfer tax, and
upon compliance with the foregoing provisions, the Company shall, without
charge, execute and deliver a new Warrant in the name of the assignee named
in such instrument of assignment, and this Warrant shall promptly be
canceled. Any assignment, transfer, pledge, hypothecation or other
disposition of this Warrant attempted contrary to the provisions of this
Warrant, or any levy of execution, attachment or other process attempted upon
the Warrant, shall be null and void and without effect.
(e) Legend and Stop Transfer Orders. Unless the Warrant Shares
have been registered under the Securities Act, upon exercise of any part of
the Warrant and the issuance of any of the Warrant Shares, the Company shall
instruct its transfer agent to enter stop transfer orders with respect to
such shares, and all certificates representing Warrant Shares shall bear on
the face thereof substantially the following legend, insofar as is consistent
with Massachusetts law:
"The shares of common stock represented by this
certificate have not been registered under the
Securities Act of 1933, as amended, and may not
be sold, offered for sale, assigned, transferred
or otherwise disposed of unless registered pursuant
to the provisions of that Act or an opinion of
counsel to the Company is obtained stating that
such disposition is in compliance with an available
exemption from such registration."
6. Loss, etc. of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like
date, tenor and denomination.
7. Warrant Holder Not Shareholder. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent
to or receive notice as a shareholder of the Company, as such, in respect of
any matters whatsoever, or any other rights or liabilities as a shareholder,
prior to the exercise hereof.
8. Communication. No notice or other communication under this Warrant
shall be effective unless the same is in writing and is mailed by first-class
mail, postage prepaid, addressed to:
(a) the Company at 1000 Main Street, Acton, Massachusetts 01720,
or such other address as the Company has designated in writing to the Holder,
or
(b) the Holder at 220 Ocean Avenue, Marblehead, Massachusetts
01945, or such other address as the Holder has designated in writing to the
Company.
9. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
10. Applicable Law. This Warrant shall be governed by and construed in
accordance with the law of the State of New York without giving effect to the
principles of conflict of laws thereof.
IN WITNESS WHEREOF, PAMET SYSTEMS, INC., has caused this Warrant to
be signed by a duly authorized officer as of this ______ day of ____________,
1998.
ATTEST: PAMET SYSTEMS, INC.
_______________________ By: ___________________________________
Name:
Title:
<PAGE>
SUBSCRIPTION
The undersigned, __________________________________________, pursuant to the
provisions of the foregoing Warrant, hereby agrees to subscribe for the
purchase of _________________________ shares of the Common Stock of PAMET
SYSTEMS, INC. covered by said Warrant, and makes payment therefor in full at
the price per share provided by said Warrant.
Dated __________________ Signature __________________________
Address ____________________________
____________________________
ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto _________________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_________________________, attorney, to transfer said Warrant on the books of
PAMET SYSTEMS, INC.
Dated __________________ Signature __________________________
Address ____________________________
____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby assigns and transfers
unto _________________________ the right to purchase
_________________________ shares of the Common Stock of PAMET SYSTEMS, INC.
by the foregoing Warrant, and a proportionate part of said Warrant and the
rights evidenced hereby, and does irrevocably constitute and appoint
_________________________, attorney, to transfer that part of said Warrant on
the books of PAMET SYSTEMS, INC.
Dated __________________ Signature __________________________
Address ____________________________
____________________________
