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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CENTRUM INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-1654011
(State of incorporation or organization) (I.R.S. Employer Identification No.)
6135 Trust Drive
Suite 104A
Holland, Ohio 43528
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12 (b) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. / /
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. / /
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK, $.05 PAR VALUE
(Title of class)
This Form 8-A/A, including all exhibits. The Exhibit Index is located on page
7.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
The authorized capital stock of the Registrant currently consists of
15,000,000 shares of Common Stock, par value $.05 per share, and 1,000,000
shares of Preferred Stock, par value $.05 per share. As of August 15, 1997,
there were 8,463,237 shares of Common Stock outstanding held of record by 1,480
persons, and there were outstanding 70,000 shares of Participating Preferred
Stock held of record by one person.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share in all matters
to be voted on by the stockholders of the Registrant. Subject to the approval
of the Registrant's secured and unsecured lenders and holders of Warrants (see
"Convertible Notes," "Warrants" and "Bank Covenants" below) and subject to
preferences that may be applicable to any Preferred Stock outstanding at the
time, holders of Common Stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by the Board of Directors out of
funds legally available therefor. In the event of a liquidation, dissolution
or winding up of the Registrant, holders of Common Stock (including the holders
of Warrants, defined below) are entitled to share ratably in all assets
remaining after payment of the Registrant's liabilities and the liquidation
preference, if any, of any outstanding Preferred Stock (see "Preferred Stock"
below). All of the outstanding shares of Common Stock are fully paid and
non-assessable. Holders of Common Stock have no preemptive, subscription,
redemption or conversion rights. The rights, preferences and privileges of
holders of Common Stock are set forth in the Registrant's Certificate of
Incorporation, as amended, which Certificate may be amended by the holders of a
majority of the outstanding shares entitled to vote on the issue. The rights,
preferences and privileges of holders of Common Stock are subject to, and may
be adversely affected by, the rights of the Registrant's secured and unsecured
lenders and holders of Warrants (see "Convertible Notes," "Warrants" and
"Bank Covenants" below) and the rights of the holders of shares of any series
of Preferred Stock which the Registrant may designate and issue in the future
(see "Preferred Stock").
Certain documentary provisions could have the effect of deterring certain
takeovers or delaying or preventing certain changes in control or management of
the Registrant. The Registrant's Certificate of Incorporation, as amended,
eliminates the right of shareholders to act without a meeting and does not
provide for cumulative voting in the election of directors. Upon the
occurrence of a "Change In Control Event," the holders of Warrants and
Convertible Notes have the right to require the Registrant to purchase all or a
portion of their outstanding securities and, after February 28, 1999, to
participate in the sale, transfer or exchange and in certain compensation paid
to senior management (see "Convertible Notes"). Additionally, it would be an
event of default if the Registrant were to undergo a change in control (as
defined in the Bank Agreement), merge or take similar action without
the consent of its secured and unsecured lenders (see "Bank Covenants" and
"Convertible Notes"). An individual stock option agreement with George H.
Wells provides that the Compensation Committee of the Board may accelerate the
unvested portion of options granted to him in August 1997 in the event of a
change in control, as defined in such agreement. All stock option agreements
with officers and directors, including the August 1997 agreement with Mr.
Wells, provide for the acceleration of the exercise period upon a change in
control.
PREFERRED STOCK
The Board of Directors has the authority, without any further vote or
action by the stockholders, to provide for the issuance of up to 1,000,000
shares of Preferred Stock from time to time in one or more series with such
designations, rights, preferences and limitations as the Board of Directors may
determine, including the consideration received therefor. The Board also has
the authority to determine the number of shares comprising each series,
dividend rates, redemption provisions, liquidation preferences, sinking fund
provisions, conversion rights and voting rights without approval by the holders
of Common Stock. The Board has exercised this authority to date only with
respect to the outstanding 70,000 shares of "Participating Preferred Stock."
The Participating Preferred Stock entitles the holder to participate in certain
amounts derived from a "net working interest" in an oil and gas exploration
property owned by a subsidiary of the Registrant, and has no rights to vote, to
receive dividends or liquidation payments, or any other rights.
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CONVERTIBLE NOTES
The Company currently has outstanding $2,500,000 of 11% Convertible
Subordinated Notes due March 31, 2001 (the "Convertible Notes"). The
Convertible Notes are convertible at any time prior to full payment of the
principal in an amount determined by dividing the aggregate principal amount to
be converted by the purchase price then applicable to the Warrants (defined
below). The Convertible Notes were issued pursuant to a Note and Warrant
Purchase Agreement dated as of February 29, 1996, effective March 8, 1996 (the
"Note Agreement"), which contains affirmative and negative covenants which
could adversely affect the rights of the holders of Common Stock. Unless
permitted in the Note Agreement, without the prior written consent of all
holders of Convertible Notes, the Registrant may not take certain actions,
including paying a dividend, repurchase or issue its capital stock, incur debt
or suffer any mortgages or liens, dispose of or acquire any businesses or
engage in any new businesses, or adopt any new incentive stock option or
similar plan. In conjunction with the Note Agreement, the Registrant also
executed a put agreement (the "Put Agreement") with the holders of the
Convertible Notes and Warrants, which requires the Registrant to repurchase
the Warrants and securities issued upon conversion of the Convertible Notes
upon a Change in Control Event, as defined in the Put Agreement, and at any
time after the last day of the fifth anniversary of the Note Agreement, at a
purchase price equivalent to the greater of the Fair Market Value or the
Earnings Value of the Company, as defined in the Put Agreement. Additionally,
shareholders of the Registrant who are also Board members of the Registrant
executed an Equity Holders Agreement pursuant to which the signatories agreed
to vote all their stock in favor of the election and continuation in office of
a Board consisting of not less than eight and not more than nine members, one
of which is designated by First New England Capital Limited Partnership and one
of which is designated by MorAmerica Capital Corporation and North Dakota Small
Business Investment Company.
WARRANTS
On March 8, 1996, the Company issued warrants for an aggregate of
1,250,000 shares of Common Stock, exercisable at a price of $2.00 per share
(the "Warrants"), and expiring on March 8, 2004. The holders of the Warrants
are entitled to receive an adjustment in the number of shares as to which the
Warrant relates and the exercise price upon the occurrence of certain events,
including the issuance by the Registrant of equity securities at a price below
the then existing exercise price or if the Registrant takes any action
affecting its Common Stock which would have a material adverse effect upon the
Holder's rights. As of August 15, 1997, the holders of the Warrants have
received warrants for 7,435 additional shares pursuant to the operation of the
foregoing provisions. The holders of the Warrants also have the benefit of
agreements described above under "Convertible Notes."
BANK COVENANTS
The Registrant's subsidiary, McInnes Steel Company and its subsidiaries,
is subject to a loan and security agreement with The Huntington National Bank
dated as of February 29, 1996 (the "Bank Agreement"), as amended, which is
guaranteed by the Registrant and certain of the Registrant's other
subsidiaries. The Bank Agreement contains certain negative covenants that
indirectly affect the holders of Common Stock by requiring the Registrant to
maintain various Net Worth and Fixed Charge Coverage Ratios, as those terms are
defined in the Bank Agreement. The Bank Agreement also prohibits the
Registrant from paying dividends or making other distributions to the
Registrant's shareholders, from repurchasing the Registrant's capital stock,
from acquiring new businesses, or from taking various other actions without the
written consent of the Bank. To secure the obligations under the Bank
Agreement, the Registrant (through its subsidiaries) has granted the Bank
mortgages and security interests in substantially all the real and personal
property of the Registrant and its subsidiaries.
REGISTRATION RIGHTS
In connection with the issuance and sale of the Warrants and the
Convertible Notes, the Registrant entered into a registration rights agreement
with MorAmerica Capital Corporation, First New England Capital Limited
Partnership and North Dakota Small Business Investment Company. Additionally,
in connection with Common Stock issued by the Registrant in the acquisition of
the assets now owned by Registrant's wholly-owned, indirect subsidiary Taylor
Forge Company, the Registrant entered into a registration rights agreement
(collectively, the "Registration Rights Agreements"). (The beneficiaries of
the Registration Rights Agreements are collectively called the "Holders.")
In the event that the Registrant files a registration statement for the
issuance and sale of its securities or the securities of other of its security
holders, the Registrant is obligated to give notice of the proposed filing of
such registration statement to the Holders, who may elect to cause all or a
portion of their securities to be included in such registration statement,
subject to reduction for
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market reasons. In such event, the Registrant would be responsible for the
payment of the Holders' "registration expenses," but not their "selling
expenses," as those terms are defined in the Registration Rights
Agreements.
LIMITATIONS ON DIRECTORS' LIABILITY
The Certificate of Incorporation, as amended, limits the liability of
directors to the full extent permitted by Delaware law. The Certificate of
Incorporation, as amended, provides that a director of the Registrant will not
be personally liable to the Registrant or its stockholders for monetary damages
for breach of their fiduciary duties as directors, except for (i) breach of
the directors' duty of loyalty, (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) the unlawful payment of a dividend or unlawful stock purchase or
redemption and (iv) any transaction from which a director derives any improper
personal benefit. The limitation of damages does not eliminate equitable
remedies for any allegation of a director's violation of his duty of care, such
as injunction or rescission.
These provisions will not limit liability under state or federal
securities laws. The Registrant believes that these provisions will assist the
Registrant in attracting and retaining qualified individuals to serve as
directors.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar of the Common Stock is Harris Trust and
Savings Bank.
BULLETIN BOARD
The Common Stock is quoted on the Bulletin Board of the National
Association of Securities Dealers under the symbol "CIII." The Registrant
intends in the near future to make application for listing its Common Stock on
a national securities exchange and/or a national securities association.
ITEM 2. EXHIBITS.
1. Certificate of Incorporation, as amended (filed as Exhibit 3.1
to the Company's Report on Form 10-K for the fiscal year ended March
31, 1996, file number 0-9607, and incorporated herein by reference).
2. Bylaws (filed as Exhibit 3.2 to the Company's Report on Form
10-K for the fiscal year ended March 31, 1996, file number 0-9607,
and incorporated herein by reference).
3. Participating Preferred Agreement (filed as Exhibit 3.3 to the
Company's Report on Form 10-K for the fiscal year ended March 31,
1996, file number 0-9607, and incorporated herein by reference).
4. Note and Warrant Purchase Agreement dated as of February 29,
1996 and effective as of March 8, 1996, by and among MorAmerica
Capital Corporation, First New England Capital Limited Partnership,
and North Dakota Small Business Investment Company and Centrum
Industries, Inc. with respect to 11% convertible, subordinated notes
and warrants for the purchase of 1,250,000 shares of the Company's
common stock (filed as Exhibit 10.3 to the Company's Report on Form
10-K for the fiscal year ended March 31, 1996, file number 0-9607,
and incorporated herein by reference).
5. Common Stock Warrant dated as of February 29, 1996 and
effective as of March 8, 1996, issued to MorAmerica Capital
Corporation for 627,445 shares of common stock (filed as Exhibit 10.4
to the Company's Report on Form 10-K for the fiscal year ended March
31, 1996, file number 0-9607, and incorporated herein by reference).
6. Common Stock Warrant dated as of February 29, 1996 and
effective as of March 8, 1996, issued to First New England Capital
Limited Partnership for 375,000 shares of common stock (filed as
Exhibit 10.5 to the Company's Report on Form 10-K for the fiscal year
ended March 31, 1996, file number 0-9607, and incorporated herein by
reference).
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7. Common Stock Warrant dated as of February 29, 1996 and
effective as of March 8, 1996, issued to North Dakota Small Business
Investment Company for 247,555 shares of common stock (filed as
Exhibit 10.6 to the Company's Report on Form 10-K for the fiscal year
ended March 31, 1996, file number 0-9607, and incorporated herein by
reference).
8. Put Agreement by and among MorAmerica Capital Corporation,
First New England Capital Limited Partnership, and North Dakota Small
Business Investment Company and Centrum Industries, Inc. (filed as
Exhibit 10.7 to the Company's Report on Form 10-K for the fiscal year
ended March 31, 1996, file number 0-9607, and incorporated herein by
reference).
9. Equity Holders Agreement dated as of February 29, 1996,
effective as of March 8, 1996, by and among First New England Capital
Limited Partnership, MorAmerica Capital Corp., North Dakota Small
Business Investment Company, Centrum Industries, Inc. and certain
shareholders of Centrum Industries, Inc. (filed as Exhibit 9.1 to the
Company's Report on Form 10-K for the fiscal year ended March 31,
1996, file number 0-9607, and incorporated herein by reference).
10. Registration Rights Agreement dated as of February 29, 1996,
effective as of March 8, 1996, by and among MorAmerica Capital
Corporation, First New England Capital Limited Partnership and North
Dakota Small Business Investment Company and Centrum Industries, Inc.
(filed as Exhibit 10.8 to the Company's Report on Form 10-K for the
fiscal year ended March 31, 1996, file number 0-9607, and
incorporated herein by reference).
11. Registration Rights Agreement dated as of June 4, 1997 by and
among Taylor Forge International, Inc. and Centrum Industries, Inc.
(filed as Exhibit 10.2 to the Company's Report on Form 8-K on June
19, 1997, file number 0-9607, and incorporated herein by reference).
12. Loan and Security Agreement dated as of February 29, 1996, by
and among The Huntington National Bank and McInnes Steel Company,
Eballoy Glass Products Company, Erie Bronze & Aluminum Company, and
McInnes International, Inc. as Borrowers, and Centrum Industries,
Inc. and McInnes Services, Inc. as Guarantors (filed as Exhibit 10.9
to the Company's Report on Form 10-K for the fiscal year ended March
31, 1996, file number 0-9607, and incorporated herein by reference);
Amendment No. 1 thereto dated January 1, 1997 (filed as Exhibit 10.29
to the Company's Report on Form 10-K for the fiscal year ended March
31, 1997, file number 0-9607, and incorporated herein by reference);
and Amendment No. 2 thereto dated June 4, 1997 (filed as Exhibit 10.5
to the Company's Report on Form 8-K on June 19, 1997, file number
0-9607, and incorporated herein by reference).
13. The Specimen of the Registrant's common stock certificate is
filed herewith.
14. The Common Stock Warrant dated as of July 21, 1997, issued to
MorAmerica Capital Corporation for 3,732 shares of common stock is
filed herewith.
15. The Common Stock Warrant dated as of July 21, 1997, issued to
North Dakota Small Business Investment Company for 1,472 shares of
common stock is filed herewith.
16. The Common Stock Warrant dated as of August 1, 1997 issued to
First New England Capital Limited Partnership for 2,231 shares of
common stock is filed herewith.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Amended Registration Statement to
be signed on its behalf by the undersigned, thereto duly authorized.
CENTRUM INDUSTRIES, INC.
(Registrant)
By: /s/ George H. Wells
--------------------------------------
George H. Wells, Chairman of the Board,
Chief Executive Officer, and President
Dated: August 26, 1997
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EXHIBIT INDEX
1. Certificate of Incorporation, as amended (filed as Exhibit 3.1 to the
Company's Report on Form 10-K for the fiscal year ended March 31, 1996,
file number 0-9607, and incorporated herein by reference).
2. Bylaws (filed as Exhibit 3.2 to the Company's Report on Form 10-K for the
fiscal year ended March 31, 1996, file number 0-9607, and incorporated
herein by reference).
3. Participating Preferred Agreement (filed as Exhibit 3.3 to the Company's
Report on Form 10-K for the fiscal year ended March 31, 1996, file number
0-9607, and incorporated herein by reference).
4. Note and Warrant Purchase Agreement dated as of February 29, 1996 and
effective as of March 8, 1996, by and among MorAmerica Capital
Corporation, First New England Capital Limited Partnership, and North
Dakota Small Business Investment Company and Centrum Industries, Inc. with
respect to 11% convertible, subordinated notes and warrants for the
purchase of 1,250,000 shares of the Company's common stock (filed as
Exhibit 10.3 to the Company's Report on Form 10-K for the fiscal year
ended March 31, 1996, file number 0-9607, and incorporated herein by
reference).
5. Common Stock Warrant dated as of February 29, 1996 and effective as of
March 8, 1996, issued to MorAmerica Capital Corporation for 627,445 shares
of common stock (filed as Exhibit 10.4 to the Company's Report on Form
10-K for the fiscal year ended March 31, 1996, file number 0-9607, and
incorporated herein by reference).
6. Common Stock Warrant dated as of February 29, 1996 and effective as of
March 8, 1996, issued to First New England Capital Limited Partnership for
375,000 shares of common stock (filed as Exhibit 10.5 to the Company's
Report on Form 10-K for the fiscal year ended March 31, 1996, file number
0-9607, and incorporated herein by reference).
7. Common Stock Warrant dated as of February 29, 1996 and effective as of
March 8, 1996, issued to First New England Capital Limited Partnership and
North Dakota Small Business Investment Company for 247,555 shares of
common stock (filed as Exhibit 10.6 to the Company's Report on Form 10-K
for the fiscal year ended March 31, 1996, file number 0-9607, and
incorporated herein by reference).
8. Put Agreement by and among MorAmerica Capital Corporation, First New
England Capital Limited Partnership, and North Dakota Small Business
Investment Company and Centrum Industries, Inc. (filed as Exhibit 10.7 to
the Company's Report on Form 10-K for the fiscal year ended March 31,
1996, file number 0-9607, and incorporated herein by reference).
9. Equity Holders Agreement dated as of February 29, 1996, effective as of
March 8, 1996, by and among First New England Capital Limited Partnership,
MorAmerica Capital Corp., North Dakota Small Business Investment Company,
Centrum Industries, Inc. and certain shareholders of Centrum Industries,
Inc. (filed as Exhibit 9.1 to the Company's Report on Form 10-K for the
fiscal year ended March 31, 1996, file number 0-9607, and incorporated
herein by reference).
10. Registration Rights Agreement dated as of February 29, 1996, effective as
of March 8, 1996, by and among MorAmerica Capital Corporation, First New
England Capital Limited Partnership and North Dakota Small Business
Investment Company and Centrum Industries, Inc. (filed as Exhibit 10.8 to
the Company's Report on Form 10-K for the fiscal year ended March 31,
1996, file number 0-9607, and incorporated herein by reference).
11. Registration Rights Agreement dated as of June 4, 1997 by and among
Taylor Forge International, Inc. and Centrum Industries, Inc. (filed as
Exhibit 10.2 to the Company's Report on Form 8-K on June 19, 1997, file
number 0-9607, and incorporated herein by reference).
12. Loan and Security Agreement dated as of February 29, 1996, by and among
The Huntington National Bank and McInnes Steel Company, Eballoy Glass
Products Company, Erie Bronze & Aluminum Company, and McInnes
International, Inc. as Borrowers, and Centrum Industries, Inc. and McInnes
Services, Inc. as Guarantors (filed as Exhibit 10.9 to the Company's
Report on Form 10-K for the fiscal year ended March 31, 1996, file number
0-9607, and incorporated herein by reference); Amendment No. 1 thereto
dated January 1, 1997 (filed as Exhibit 10.29 to the
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Company's Report on Form 10-K for the fiscal year ended March 31, 1997,
file number 0-9607, and incorporated herein by reference); and Amendment
No. 2 thereto dated June 4, 1997 (filed as Exhibit 10.5 to the Company's
Report on Form 8-K on June 19, 1997, file number 0-9607, and
incorporated herein by reference).
4.13. The Specimen of the Registrant's common stock certificate is filed
herewith.
4.14. The Common Stock Warrant dated as of July 21, 1997, issued to MorAmerica
Capital Corporation for 3,732 shares of common stock is filed herewith.
4.15. The Common Stock Warrant dated as of July 21, 1997, issued to North
Dakota Small Business Investment Company for 1,472 shares of common
stock is filed herewith.
4.16. The Common Stock Warrant dated as of August 1, 1997, issued to First New
England Capital Limited Partnership for 2,231 shares of common stock is
filed herewith.
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EXHIBIT 4.13
<TABLE>
<S><C>
COMMON [GRAPHIC] COMMON
NUMBER SHARES
SM 3923 SPECIMEN
THIS CERTIFICATE IS TRANSFERABLE
EITHER IN CHICAGO, IL . CENTRUM INDUSTRIES, INC.
OR IN NEW YORK, N.Y.
INCORPORATED UNDER THE LAWS OF THE STATE OF NORTH DAKOTA CUSIP 15640H 10 6
See reverse for certain definitions
THIS CERTIFIES THAT is the owner of
SPECIMEN
FULLY PAID AND NONASSESSABLE SHARES, OF THE PAR VALUE OF FIVE CENTS ($.05) EACH OF THE COMMON STOCK OF
----------------------- ----------------------------- Countersigned
----------------------------------CENTRUM INDUSTRIES, INC.--------------------------------------- and
----------------------- ----------------------------- Registered
(hereinafter called the "Corporation") transferable on the books of the Corporation by the holder HARRIS TRUST
hereof in person, or by duly authorized attorney, upon the surrender of this Certificate properly AND SAVINGS
endorsed. This certificate is not valid until countersigned by the Transfer Agent and registered BANK
by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly By ____________
authorized officers.
Auth. Sig.
TRANSFER AGENT
& REGISTRAR
Dated:
[SIG] Chairman [SIG]
[SEAL] PRESIDENT
</TABLE>
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<TABLE>
<S><C>
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations:
UNIF GIFT MIN ACT - ............. Custodian ..............
TEN COM -as tenants in common (Cust) (Minor)
TEN ENT -as tenants by the entireties under Uniform Gifts to Min.
JT TEN -as joint tenants with right of
survivorship and not as tenants Act...........................
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received _______ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFIYING NUMBER OF ASSIGNEE
_________________________
| |
|_________________________|_________________________________________________________________________________
____________________________________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
_______________________________________________________________________________________________________ Shares
of the capital stock represented by the within Certificate; and do hereby irrevocably constitute and appoint
_______________________________________________________________________________________________________ Attorney
to transfer the said stock on the books of the within-named Corporation with full power of substitution in the
premises.
Dated ________________________________________________
________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVENT PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
</TABLE>
SIGNATURE GUARANTEED
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EXHIBIT 4.14
COMMON STOCK WARRANT
July 21, 1997
NEITHER THIS WARRANT, NOR THE STOCK TO BE ISSUED UPON EXERCISE HEREOF, HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 SECURITIES
ACT"), OR QUALIFIED OR REGISTERED UNDER ANY STATE SECURITIES LAWS (THE "STATE
SECURITIES LAWS"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED
UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR
OTHER DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 SECURITIES ACT AND COMPLIANCE WITH THE APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER AND ITS
COUNSEL, THAT SAID REGISTRATION IS NOT REQUIRED UNDER THE 1933 SECURITIES ACT
AND THAT APPLICABLE STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH.
WARRANT
Void after March 8, 2004
No. 4 Warrant to Purchase Common Stock
$.05 Par Value
This certifies that MORAMERICA CAPITAL CORPORATION ("Purchaser"),
having an address of c/o InvestAmerica Investment Advisors, Inc., 101 2nd
Street S.E., Suite 800, Cedar Rapids, Iowa 52401, or any party to whom this
Warrant is assigned in compliance with the terms hereof (Purchaser and any such
assignee being hereafter sometimes referred to as "Holder"), is entitled to
subscribe to and purchase, (i) during the period commencing at the date first
set forth above and ending at 5 p.m. Toledo, Ohio local time, on the
"Expiration Date" (as defined below), THREE THOUSAND AND SEVEN HUNDRED THIRTY
TWO (3,732) shares of fully paid and nonassessable Common Stock (as hereinafter
defined of CENTRUM INDUSTRIES, INC. (the "Company"), a Delaware corporation
with its principal place of business at 6135 Trust Drive, Suite 104A, Holland,
Ohio 43528. This Warrant is one of a series of Warrants identical in form
issued by the Company pursuant to the Agreement (as defined below), and the
Holder, by acceptance hereof, agrees to be bound by the provisions of such
Agreement as applicable to this Warrant. The purchase price of each such share
of Common Stock shall be the Warrant Price as defined below. This Warrant was
originally issued to Purchaser pursuant to the Agreement (as defined below).
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ARTICLE I
DEFINITIONS
1.1 "Aggregate Price" shall mean the product, at any time of reference, of
(i) the Warrant Price multiplied by (ii) the number of shares of
Warrant Stock.
1.2 "Agreement" shall mean that certain Note and Warrant Purchase
Agreement entered into by and between Purchaser, among others, and the
Company of even date herewith.
1.3 "Common Stock" shall mean and include the Company's common stock, par
value $.05, as constituted on the date hereof, and shall also include
any capital stock of any class or series of the Company's hereafter
authorized which shall substitute for or replace the Common Stock as
constituted on the date hereof; provided, however, that in the event
the Company authorizes one or more classes or series of capital stock
qualifying as "Common Stock" for purposes of the foregoing definition,
in addition to the class of authorized capital stock denominated as
"Common Stock" in the Company's Certificate of Incorporation as of the
date hereof, the Holder shall have the right to designate at each time
it exercises its rights hereunder the class or series of authorized
capital stock that it elects to purchase in satisfaction of its rights
hereunder.
1.4 "Common Stock Equivalents" shall mean Convertible Securities and
Rights.
1.5 "Convertible Securities" means any securities which are directly or
indirectly convertible into Common Stock.
1.6 "Effective Price" means the quotient obtained by dividing (i) Minimum
Consideration by (ii) Maximum Shares Upon Exercise.
1.7 "Expiration Date" means March 8, 2004.
1.8 "Maximum Shares Upon Exercise" means the maximum number of shares of
Common Stock issuable under a Common Stock Equivalent upon complete
exercise and full conversion of all Rights or Convertible Securities
represented thereby, computed without regard to contingent adjustments
to the number of shares issuable upon exercise and conversion.
1.9 "Minimum Consideration" means the minimum aggregate consideration paid
or payable at any time for the purchase of the Common Stock
Equivalents during the term of the Common Stock Equivalents, and upon
complete exercise and full conversion of the Common Stock Equivalents,
computed without regard to contingent adjustments to exercise or
conversion price.
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1.10 "Notes" means the Company's 11% Convertible Subordinated Notes due
March 31, 2001, one or more of which has been issued by the Company
on the date hereof to the Purchaser, among others, together with any
note issued in exchange therefor or replacement thereof.
1.11 "Rights" means any options, warrants, or rights to purchase Common
Stock or Convertible Securities.
1.12 "Warrant Price" shall mean Two and 00/100 ($2.00) Dollars for each
share of Common Stock subject, however, to reduction pursuant to
Section 3.5 hereof.
1.13 "Warrant Stock" shall mean 3,732 shares of Common Stock, subject to
reduction as provided in Section 2.2 hereof.
ARTICLE II
EXERCISE AND PAYMENT
2.1 Cash Exercise. The purchase rights represented by this Warrant may be
exercised by Holder, in whole or in part, by written notice of
exercise delivered to the Company at least twenty (20) days prior to
the intended date of exercise and by the surrender of this Warrant at
the principal office of the Company, and by the payment to the
Company, by certified, cashier's or other check acceptable to the
Company, of an amount equal to the aggregate Warrant Price of the
shares being purchased.
2.2 Deemed Exercise Upon Conversion of Notes. In lieu of exercising this
Warrant pursuant to Section 2.1, Holder may elect to convert all or a
portion of the outstanding principal balance of any of the Notes into
shares of Common Stock at a conversion price equal to the Warrant
Price pursuant to the terms of such Note, in which event this Warrant
shall be deemed, without further act or instrument, to have been
exercised for a number of shares of Common Stock equal to the number
of shares of Common Stock received by the Purchaser upon such
conversion, and the number of shares of Warrant Stock subject to this
Warrant shall be reduced by an equal number of shares, and this
Warrant shall remain in full force and effect with respect to such
reduced number of shares of Warrant Stock. The foregoing conversion
shall be effected by delivery of a written notice to the Company at
least twenty (20) days prior to the intended date of conversion
specifying the amount of outstanding principal to be converted. By
way of example and illustration only, if the Purchaser elects to
convert $100 of the outstanding principal balance of a Note and
receives 50 shares of Common Stock upon such conversion, the number of
shares of Warrant Stock subject to this Warrant shall be reduced from
3,732 to 3,682 and this Warrant shall remain in full force and effect
with respect to such 3,682 shares of Warrant Stock.
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2.3 Stock Certificate. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common
Stock so purchased shall be delivered to Holder within a reasonable
time and, unless this Warrant has been fully exercised or has expired,
a new Warrant representing the number of shares of Common Stock with
respect to which this Warrant shall not have been exercised shall also
be issued to Holder within such time.
2.4 Stock Fully Paid; Reservation of Shares. The Company covenants and
agrees that all Common Stock which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be fully
paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof (excluding taxes based on the income of
Holder), provided that any such shares of Common Stock shall be
subject to the restrictions, obligations and duties imposed upon
stockholders of the Company pursuant to that certain Equity Holders'
Agreement, of even date herewith, among the Company and the Purchaser,
among others, as the same may be amended and supplemented to and
including the date hereof (the "Equity Holders' Agreement"), and shall
be subject to applicable restrictions imposed by relevant federal and
state securities laws relating to capital stock sold in a private
placement. The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved
for issuance a sufficient number of shares of its Common Stock as
would be required upon the full exercise of the rights represented by
this Warrant.
2.5 Fractional Shares. No fractional share of Common Stock will be issued
in connection with any exercise hereof, but in lieu of a fractional
share upon complete exercise hereof, Holder may purchase a whole share
at the then effective Warrant Price.
ARTICLE III
CERTAIN ADJUSTMENTS OF NUMBER OF
SHARES PURCHASABLE AND WARRANT PRICE
The number and kind of securities purchasable upon the exercise of
this Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the occurrence of certain events, as follows:
3.1 Reclassification, Consolidation or Merger. In case of: (i) any
reclassification or change of outstanding securities issuable upon
exercise of this Warrant; (ii) any consolidation or merger of the
Company with or into another corporation (other than a merger with
another corporation in which the Company is a continuing corporation
and which does not result in any reclassification, change or exchange
of outstanding securities issuable
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upon exercise of this Warrant); or (iii) any sale or transfer to
another corporation of all, or substantially all, of the property of
the Company, then, and in each such event, the Company or such
successor or purchasing corporation, as the case may be, shall execute
a new Warrant which will provide that Holder shall have the right to
exercise such new Warrant and purchase upon such exercise, in lieu of
each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind and amount of securities, money and property
receivable upon such reclassification, change, consolidation, merger,
sale or transfer by a holder of one share of Common Stock issuable
upon exercise of this Warrant had this Warrant been exercised
immediately prior to such reclassification, change, consolidation,
merger, sale or transfer. Such new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided in this Section 3 and the provisions of
this Section 3.1, shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
transfers.
3.2 Subdivision or Combination of Shares. If the Company shall at any
time while this Warrant remains outstanding and unexercised in whole
or in part: (i) divide its Common Stock, the Warrant Price shall be
proportionately reduced; or (ii) combine shares of is Common Stock,
the Warrant Price shall be proportionately increased.
3.3 Adjustment for Issue or Sale of Shares at Less Than the Warrant Price.
If, in a transaction other than an issuance excepted from these
provisions as set forth below or an issuance that causes an adjustment
under Sections 3.1 or 3.2, the Company shall at any time or from time
to time, issue any additional shares of Common Stock without
consideration or for a net consideration per share less than the
Warrant Price in effect immediately prior to such issuance, then, and
in each case, the Warrant Price shall be lowered to an amount equal to
the lowest per share price received, or deemed received, by the
Company as consideration for such Shares.
For purposes of this Section 3.3:
(i) There shall be no adjustment under this Section 3.3
for any sales or issuances: (a) in a transaction in
which an adjustment will be made pursuant to Section
3.1 or 3.2; or (b) pursuant to that certain
Confidential Private Placement Memorandum of the
Company dated November 15, 1995 for the sale of up to
2,400,000 shares of the Company's common stock at a
price of $1.50 per share; or (c) upon the Company's
granting to George Wells, no later than ninety (90)
days after March 31, 1996 fiscal year at the
discretion of the Company's Board of Directors, based
upon satisfaction of certain incentive goals, an
option or options to purchase up to 150,000 shares of
the Company's common stock at a price of $1.50 per
share;
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(ii) The issuance of Common Stock Equivalents shall be
deemed an issuance at such time of the shares of
Common Stock underlying the Common Stock Equivalents.
If the Effective Price shall be less than the Warrant
Price at the time of such issuance, then an
adjustment in the Warrant Price shall be made upon
each such issuance in the manner provided in this
Section 3.3. No adjustment of the Warrant Price shall
be made under this Section 3.3 upon the issuance of
shares of Common Stock upon the exercise or
conversion of Common Stock Equivalents if an
adjustment has previously been made as above
provided. Any adjustment of the Warrant Price shall
be disregarded, if, as and when such Common Stock
Equivalents expire or are cancelled without being
exercised so that the Warrant Price effective
immediately upon such cancellation or expiration
shall be equal to the Warrant Price in effect at the
time of the issuance of the expired or cancelled
Common Stock Equivalents, with such additional
adjustments as would have been made to the Warrant
Price had the expired or cancelled Common Stock);
Equivalents not been issued.
3.4 Other Action Affecting Common Stock. (a) If the Company takes any
action affecting its Common Stock after the date hereof (including
dividends and distributions), other than an action described in any of
Sections 3.1 and 3.2 hereof, which would have a material adverse
effect upon Holder's rights hereunder, the Warrant Price shall be
adjusted downward in such manner and at such time as the Board of
Directors of the Company shall in good faith determine to be equitable
under the circumstances.
(b) In case the Company shall make any distribution of
its assets to holders of its Common Stock as a liquidation or partial
liquidation dividend or by ways of return of capital, or other than as
a dividend payable out of earnings or surplus legally available for
dividends under the laws of the state of incorporation of the Company,
and Holder exercises this Warrant within thirty (30) days after the
later of (i) the record date for the determination of the holders of
Common Stock entitled to such distribution of assets and (ii) the date
upon which notice of such distribution is delivered by the Company to
Holder, Holder shall be entitled to receive, for no additional
consideration, in addition to the Warrant Stock, the amount of such
assets (or, at the option of the Company. a sum equal to the value
thereof at the time of such distribution, such value to be determined
by the Board of Directors of the Company in good faith) that would
have been payable to the Holder had it been the holder of record of
the Warrant Stock on such record date.
(c) In case the Company shall liquidate or wind up its
affairs, the Holder shall be entitled, upon the exercise hereof, to
receive, in lieu of the shares of Warrant Stock; that the Holder would
have been entitled to receive, the same kind and amount of assets as
would have been issued, paid or otherwise distributed to the Holder
upon such dissolution, liquidation or winding up with respect to such
shares of Warrant Stock, had
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the Holder been the holder of record of such shares of Warrant Stock
on the record date for the determination of those entitled to receive
any such distribution; provided, however, that all rights under this
Warrant shall terminate on a date fixed by the Company, such date to
be not earlier than the date of commencement of proceedings for
dissolution, liquidation or winding up and not later than thirty (30)
days after such date of commencement, unless the Holder shall have,
prior to such termination date, exercised this Warrant. Written
notice of such termination of rights under this Warrant shall be given
to the Holder at least thirty (30) days prior to such termination
date.
3.5 Time of Adjustments to the Warrant Price. All adjustments to the
Warrant Price and the number of shares purchasable hereunder, unless
otherwise specified herein, shall be effective as of the earlier of:
(i) the date of issue (or date of sale, if earlier) of
the security causing the adjustment;
(ii) the effective date of a division or combination of
shares;
(iii) the record date of any action of holders of the
Company's capital stock of any class taken for the
purpose of dividing or combining shares or entitling
shareholders to receive a distribution or dividends.
3.6 Notice of Adjustments. In each case of an adjustment in the Warrant
Price and the number of shares purchasable hereunder, the Company, at
its expense, shall cause the Treasurer or chief financial officer of
the Company to compute such adjustment and prepare a certificate
setting forth such adjustment and showing in detail the facts upon
which such adjustment is based. The Company shall promptly mail a copy
of each such certificate to Holder pursuant to Section 6.9 hereof.
3.7 Duration of Adjusted Warrant Price. Following each adjustment of the
Warrant Price such adjusted Warrant Price shall remain in effect until
a further adjustment of the Warrant Price.
3.8 Adjustment of Number of Shares. Upon each adjustment of the Warrant
Price pursuant to this Section 3, the number of shares of Warrant
Stock shall be adjusted to the nearest whole share, to the number
obtained by dividing the Aggregate Price by the Warrant Price as
adjusted.
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ARTICLE IV
TRANSFER, EXCHANGE AND LOSS
4.1 Transfer. This Warrant is transferable on the books of the Company at
its principal office by the registered Holder hereof upon surrender of
this Warrant properly endorsed, subject to compliance with federal and
state securities laws. The Company shall issue and deliver to the
transferee a new Warrant or Warrants representing the Warrants so
transferred. Upon any partial transfer, the Company will issue and
deliver to Holder a new Warrant or Warrants with respect to the
Warrants not so transferred. Notwithstanding the foregoing, Holder
shall not be entitled to transfer a number of shares or an interest in
this Warrant representing less than five percent (5%) of the aggregate
shares initially covered by this Warrant. Any transferee shall be
subject to the same restrictions on transfer with respect to this
Warrant as the Purchaser.
4.9 Securities Laws. Upon any issuance of shares of Common Stock upon
exercise of this warrant, it shall be the Company's responsibility to
comply with the requirements of: (1) the 1933 Securities Act; (2) the
Securities Exchange Act of 1934, as amended; (3) any applicable
listing requirements of any national securities exchange; (4) any
state securities regulation or "Blue Sky" laws; and (5) requirements
under any other law or regulation applicable to the issuance or
transfer of such shares. If required by the Company, in connection
with each issuance of shares of Common Stock upon exercise of this
Warrant, the Holder will give: (i) assurances in writing, satisfactory
to the Company, that such shares are not being purchased with a view
to the distribution thereof in violation of applicable laws, (ii)
sufficient information, in writing, to enable the Company to rely on
exemptions from the registration or qualification requirements of
applicable laws, if available, with respect to such exercise, (iii)
the legal opinion required by the restrictive legend set forth at the
beginning of this Warrant, and (iv) its cooperation to the Company in
connection with such compliance.
4.3 Exchange. Subject to compliance with applicable federal and state
securities laws, this Warrant is exchangeable at the principal office
of the Company for Warrants to purchase the same number of shares of
Common Stock purchasable hereunder, each new Warrant to represent the
right to purchase such number of shares of Common Stock as Holder
shall designate at the time of such exchange. Each new Warrant shall
be identical in form and content to this Warrant, except for
appropriate changes in the number of shares of Common Stock covered
thereby, the aggregate purchase price of such shares, the percentage
stated in Section 4.1 above, and any other changes which are necessary
in order to prevent the Warrant exchange from changing the respective
rights and obligations of the Company and the Holder as they existed
immediately prior to such exchange.
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4.4 Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it of the ownership of, and the loss, theft,
destruction or mutilation of, this Warrant and (in the case of loss,
theft, or destruction) of indemnity satisfactory to it, and (in the
case of mutilation) upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant.
ARTICLE V
HOLDER RIGHTS
5.1 No Shareholder Rights Until Exercise. No Holder hereof, solely by
virtue hereof, shall be entitled to any rights as a shareholder of the
Company. Holder shall have all rights of a shareholder with respect
to securities purchased upon exercise hereof at the time of cash or
deemed exercise pursuant to Sections 2.1 and 2.2 hereof.
5.2 Registration Rights. The Company agrees that any shares of Common
Stock issued to Holder upon exercise of this Warrant shall be subject
to the registration rights set forth in the Registration Rights
Agreement of even date herewith among the Company, the Purchaser and
others.
ARTICLE VI
MISCELLANEOUS
6.1 Additional Covenants by the Company. The Company further covenants
and agrees that it will:
a. Give each Holder prompt written notice of any
intended changes to the composition of its capital
structure, whether by issuance of new securities or
otherwise;
b. Give each Holder written notice of any shareholders'
meeting and will allow a representative of each
Holder to attend such meetings;
c. Give each Holder at least five days' prior written
notice of any action that the Company intends to take
by shareholders' written consent;
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d. Allow, upon reasonable notice and at reasonable
times, the inspection of its minute book and other
corporate records by a representative of the Holder;
and
e. Not engage, other than on arm's length terms, in any
transaction with any of its shareholders or
affiliates (as such term is defined under Rule 144
issued by the Securities and Exchange Commission
under the 1933 Securities Act, as amended).
6.2 Governmental Approvals. The Company will from time to time take all
action which may be necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and securities acts filings under federal and state laws,
which may be or become requisite in connection with the issuance,
sale, and delivery of this Warrant, and the issuance. sale and
delivery of the shares of Common Stock or other securities or property
issuable or deliverable upon exercise of this Warrant.
6.1 Governing Laws. It is the intention of the parties hereto that except
as set forth below, the internal laws of the State of Connecticut,
U.S.A. (irrespective of its choice of law principles) shall govern the
validity of this warrant, the construction of its terms. and the
interpretation and enforcement of the rights and duties of the parties
hereto, provided that the corporation laws of the State of Delaware
shall govern the procedural and substantive matters pertaining to the
due authorization, issuance, delivery and exercise of this Warrant and
the shares of Common Stock upon exercise hereof. Except as set forth
below, the parties hereby agree that any suit to enforce any provision
of this Warrant arising out of or based upon this Warrant or the
business relationship between any of the parties hereto shall be
brought in the United States District Court for the District of
Delaware or the courts of the State of Delaware located in Wilmington,
Delaware. Each party hereby agrees that such courts shall have
personal jurisdiction and venue with respect to such party, and each
party hereby submits to the personal jurisdiction and venue of such
courts. In addition to the foregoing jurisdiction, Holder at its sole
option, may commence any such suit in any jurisdiction in which the
Company has a business office or is incorporated.
6.4 Binding Upon Successors and Assigns. Subject to, and unless otherwise
provided in, this Warrant, each and all of the covenants, terms
provisions, and agreements contained herein shall be binding upon, and
inure to the benefit of the permitted successors. executors, heirs,
representatives, administrators and assigns of the parties hereto.
6.5 Severability. If any one or more provisions of this Warrant, or the
application thereof, shall for any reason and to any extent be invalid
or unenforceable, the remainder of this Warrant and the application of
such provisions to other persons or circumstances shall be
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interpreted so as best to reasonably effect the intent of the parties
hereto. The parties further agree to replace any such void or
unenforceable provisions of this Warrant with valid and enforceable
provisions which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
6.6 Default, Amendment and Waivers. This Warrant may be amended upon the
written consent of the Company and the Holder. The waiver by a party
of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to
constitute a waiver of any other default or any succeeding breach or
default. It shall be an event of default under this Warrant if the
Company breaches any term or condition hereof or fails to perform any
obligation as and when required hereunder and such breach or failure
is not cured within thirty (30) days after receiving written notice
thereof from Holder. Upon such event of default, the Warrant Price for
all shares shall be reduced by one-fifth and thereafter shall continue
to be reduced by one-fifth from the then adjusted Warrant Price for
each successive thirty (30) day period in which such breach is not
cured.
6.7 No Waiver. The failure of any party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
6.8 Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Warrant, the prevailing party shall be entitled to
recover, as an element of the costs of suit and not as damages,
reasonable attorneys fees to be fixed by the court (including without
limitation, costs, expenses and fees on any appeal). The prevailing
party shall be the party entitle to recover its costs of suit,
regardless of whether such suit proceeds to final judgment. A party
not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in
calculating the amount of a judgment for purposes of determining if a
party is entitled to recover costs or attorneys' fees.
6.9 Notices. Whenever any party hereto desires or is required to give any
notices, demand, or request with respect to this Warrant, each such
communication shall be in writing and shall be effective only if it
is delivered by personal service or delivered by a nationally
recognized overnight courier, in each case addressed to the parties
hereto at their respective addresses set forth at the beginning of
this Agreement. Such communication shall be effective when they are
received by the addressee thereof. Any party may change its address
for such communications by giving notice thereof to the other party
in conformity with this Section.
6.10 Time. Time is of the essence of this Warrant.
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6.11 Construction of Agreement. This Warrant has been negotiated by the
respective parties hereto and their attorneys and the language hereof
shall not be construed for or against any party.
6.12 No Endorsement. Holder understands that no federal or state
securities administrator has made any finding or determination
relating to the fairness of investment in the Company or purchase of
the Common Stock hereunder and that no federal or state securities
administrator has recommended or endorsed the offering of securities
by the Company hereunder.
6.13 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
6.14 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be
reasonably requested by any other party to better evidence and reflect
the transactions described herein and contemplated hereby, and to
carry into effect the intents and purposes of this Warrant.
IN WITNESS WHEREOF, the undersigned Company has caused this Common
Stock Warrant to be executed and delivered on the date first above written by
its President, thereunto duly authorized.
COMPANY:
Centrum Industries, Inc.
By: /s/ George H. Wells
----------------------------
George Wells
Its President
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EXHIBIT 4.15
COMMON STOCK WARRANT
July 21, 1997
NEITHER THIS WARRANT, NOR THE STOCK TO BE ISSUED UPON EXERCISE HEREOF, HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 SECURITIES
ACT"), OR QUALIFIED OR REGISTERED UNDER ANY STATE SECURITIES LAWS (THE "STATE
SECURITIES LAWS"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED
UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR
OTHER DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 SECURITIES ACT AND COMPLIANCE WITH THE APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER AND ITS
COUNSEL, THAT SAID REGISTRATION IS NOT REQUIRED UNDER THE 1933 SECURITIES ACT
AND THAT APPLICABLE STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH.
WARRANT
Void after March 8, 2004
No. 5 Warrant to Purchase Common Stock
$.05 Par Value
This certifies that THE NORTH DAKOTA SMALL BUSINESS INVESTMENT COMPANY
("Purchaser"), having an address of c/o InvestAmerica Investment Advisors,
Inc., 101 2nd Street S.E., Suite 800, Cedar Rapids, Iowa 52401, or any party to
whom this Warrant is assigned in compliance with the terms hereof (Purchaser
and any such assignee being hereafter sometimes referred to as "Holder"), is
entitled to subscribe to and purchase, (i) during the period commencing at the
date first set forth above and ending at 5 p.m. Toledo, Ohio local time, on the
"Expiration Date" (as defined below), ONE THOUSAND FOUR HUNDRED SEVENTY TWO
(1,472) shares of fully paid and nonassessable Common Stock (as hereinafter
defined of CENTRUM INDUSTRIES, INC. (the "Company"), a Delaware corporation
with its principal place of business at 6135 Trust Drive, Suite 104A, Holland,
Ohio 43528. This Warrant is one of a series of Warrants identical in form
issued by the Company pursuant to the Agreement (as defined below), and the
Holder, by acceptance hereof, agrees to be bound by the provisions of such
Agreement as applicable to this Warrant. The purchase price of each such share
of Common Stock shall be the Warrant Price as defined below. This Warrant was
originally issued to Purchaser pursuant to the Agreement (as defined below).
<PAGE> 2
ARTICLE I
DEFINITIONS
1.1 "Aggregate Price" shall mean the product, at any time of reference, of
(i) the Warrant Price multiplied by (ii) the number of shares of
Warrant Stock.
1.2 "Agreement" shall mean that certain Note and Warrant Purchase
Agreement entered into by and between Purchaser, among others, and the
Company of even date herewith.
1.3 "Common Stock" shall mean and include the Company's common stock, par
value $.05, as constituted on the date hereof, and shall also include
any capital stock of any class or series of the Company's hereafter
authorized which shall substitute for or replace the Common Stock as
constituted on the date hereof; provided, however, that in the event
the Company authorizes one or more classes or series of capital stock
qualifying as "Common Stock" for purposes of the foregoing definition,
in addition to the class of authorized capital stock denominated as
"Common Stock" in the Company's Certificate of Incorporation as of the
date hereof, the Holder shall have the right to designate at each time
it exercises its rights hereunder the class or series of authorized
capital stock that it elects to purchase in satisfaction of its rights
hereunder.
1.4 "Common Stock Equivalents" shall mean Convertible Securities and
Rights.
1.5 "Convertible Securities" means any securities which are directly or
indirectly convertible into Common Stock.
1.6 "Effective Price" means the quotient obtained by dividing (i) Minimum
Consideration by (ii) Maximum Shares Upon Exercise.
1.7 "Expiration Date" means March 8, 2004.
1.8 "Maximum Shares Upon Exercise" means the maximum number of shares of
Common Stock issuable under a Common Stock Equivalent upon complete
exercise and full conversion of all Rights or Convertible Securities
represented thereby, computed without regard to contingent adjustments
to the number of shares issuable upon exercise and conversion.
1.9 "Minimum Consideration" means the minimum aggregate consideration paid
or payable at any time for the purchase of the Common Stock
Equivalents during the term of the Common Stock Equivalents, and upon
complete exercise and full conversion of the Common Stock Equivalents,
computed without regard to contingent adjustments to exercise or
conversion price.
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1.10 "Notes" means the Company's 11% Convertible Subordinated Notes due
March 31, 2001, one or more of which has been issued by the Company
on the date hereof to the Purchaser, among others, together with any
note issued in exchange therefor or replacement thereof.
1.11 "Rights" means any options, warrants, or rights to purchase Common
Stock or Convertible Securities.
1.12 "Warrant Price" shall mean Two and 00/100 ($2.00) Dollars for each
share of Common Stock subject, however, to reduction pursuant to
Section 3.5 hereof.
1.13 "Warrant Stock" shall mean 1,472 shares of Common Stock, subject to
reduction as provided in Section 2.2 hereof.
ARTICLE II
EXERCISE AND PAYMENT
2.1 Cash Exercise. The purchase rights represented by this Warrant may be
exercised by Holder, in whole or in part, by written notice of
exercise delivered to the Company at least twenty (20) days prior to
the intended date of exercise and by the surrender of this Warrant at
the principal office of the Company, and by the payment to the
Company, by certified, cashier's or other check acceptable to the
Company, of an amount equal to the aggregate Warrant Price of the
shares being purchased.
2.2 Deemed Exercise Upon Conversion of Notes. In lieu of exercising this
Warrant pursuant to Section 2.1, Holder may elect to convert all or a
portion of the outstanding principal balance of any of the Notes into
shares of Common Stock at a conversion price equal to the Warrant
Price pursuant to the terms of such Note, in which event this Warrant
shall be deemed, without further act or instrument, to have been
exercised for a number of shares of Common Stock equal to the number
of shares of Common Stock received by the Purchaser upon such
conversion, and the number of shares of Warrant Stock subject to this
Warrant shall be reduced by an equal number of shares, and this
Warrant shall remain in full force and effect with respect to such
reduced number of shares of Warrant Stock. The foregoing conversion
shall be effected by delivery of a written notice to the Company at
least twenty (20) days prior to the intended date of conversion
specifying the amount of outstanding principal to be converted. By
way of example and illustration only, if the Purchaser elects to
convert $100 of the outstanding principal balance of a Note and
receives 50 shares of Common Stock upon such conversion, the number of
shares of Warrant Stock subject to this Warrant shall be reduced from
1,472 to 1,422 and this Warrant shall remain in full force and effect
with respect to such 1,422 shares of Warrant Stock.
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2.3 Stock Certificate. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common
Stock so purchased shall be delivered to Holder within a reasonable
time and, unless this Warrant has been fully exercised or has expired,
a new Warrant representing the number of shares of Common Stock with
respect to which this Warrant shall not have been exercised shall also
be issued to Holder within such time.
2.4 Stock Fully Paid; Reservation of Shares. The Company covenants and
agrees that all Common Stock which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be fully
paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof (excluding taxes based on the income of
Holder), provided that any such shares of Common Stock shall be
subject to the restrictions, obligations and duties imposed upon
stockholders of the Company pursuant to that certain Equity Holders'
Agreement, of even date herewith, among the Company and the Purchaser,
among others, as the same may be amended and supplemented to and
including the date hereof (the "Equity Holders' Agreement"), and shall
be subject to applicable restrictions imposed by relevant federal and
state securities laws relating to capital stock sold in a private
placement. The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved
for issuance a sufficient number of shares of its Common Stock as
would be required upon the full exercise of the rights represented by
this Warrant.
2.5 Fractional Shares. No fractional share of Common Stock will be issued
in connection with any exercise hereof, but in lieu of a fractional
share upon complete exercise hereof, Holder may purchase a whole share
at the then effective Warrant Price.
ARTICLE III
CERTAIN ADJUSTMENTS OF NUMBER OF
SHARES PURCHASABLE AND WARRANT PRICE
The number and kind of securities purchasable upon the exercise of
this Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the occurrence of certain events, as follows:
3.1 Reclassification, Consolidation or Merger. In case of: (i) any
reclassification or change of outstanding securities issuable upon
exercise of this Warrant; (ii) any consolidation or merger of the
Company with or into another corporation (other than a merger with
another corporation in which the Company is a continuing corporation
and which does not result in any reclassification, change or exchange
of outstanding securities issuable
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upon exercise of this Warrant); or (iii) any sale or transfer to
another corporation of all, or substantially all, of the property of
the Company, then, and in each such event, the Company or such
successor or purchasing corporation, as the case may be, shall execute
a new Warrant which will provide that Holder shall have the right to
exercise such new Warrant and purchase upon such exercise, in lieu of
each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind and amount of securities, money and property
receivable upon such reclassification, change, consolidation, merger,
sale or transfer by a holder of one share of Common Stock issuable
upon exercise of this Warrant had this Warrant been exercised
immediately prior to such reclassification, change, consolidation,
merger, sale or transfer. Such new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided in this Section 3 and the provisions of
this Section 3.1, shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
transfers.
3.2 Subdivision or Combination of Shares. If the Company shall at any
time while this Warrant remains outstanding and unexercised in whole
or in part: (i) divide its Common Stock, the Warrant Price shall be
proportionately reduced; or (ii) combine shares of is Common Stock,
the Warrant Price shall be proportionately increased.
3.3 Adjustment for Issue or Sale of Shares at Less Than the Warrant Price.
If, in a transaction other than an issuance excepted from these
provisions as set forth below or an issuance that causes an adjustment
under Sections 3.1 or 3.2, the Company shall at any time or from time
to time, issue any additional shares of Common Stock without
consideration or for a net consideration per share less than the
Warrant Price in effect immediately prior to such issuance, then, and
in each case, the Warrant Price shall be lowered to an amount equal to
the lowest per share price received, or deemed received, by the
Company as consideration for such Shares.
For purposes of this Section 3.3:
(i) There shall be no adjustment under this Section 3.3
for any sales or issuances: (a) in a transaction in
which an adjustment will be made pursuant to Section
3.1 or 3.2; or (b) pursuant to that certain
Confidential Private Placement Memorandum of the
Company dated November 15, 1995 for the sale of up to
2,400,000 shares of the Company's common stock at a
price of $1.50 per share; or (c) upon the Company's
granting to George Wells, no later than ninety (90)
days after March 31, 1996 fiscal year at the
discretion of the Company's Board of Directors, based
upon satisfaction of certain incentive goals, an
option or options to purchase up to 150,000 shares of
the Company's common stock at a price of $1.50 per
share;
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(ii) The issuance of Common Stock Equivalents shall be
deemed an issuance at such time of the shares of
Common Stock underlying the Common Stock Equivalents.
If the Effective Price shall be less than the Warrant
Price at the time of such issuance, then an
adjustment in the Warrant Price shall be made upon
each such issuance in the manner provided in this
Section 3.3. No adjustment of the Warrant Price shall
be made under this Section 3.3 upon the issuance of
shares of Common Stock upon the exercise or
conversion of Common Stock Equivalents if an
adjustment has previously been made as above
provided. Any adjustment of the Warrant Price shall
be disregarded, if, as and when such Common Stock
Equivalents expire or are cancelled without being
exercised so that the Warrant Price effective
immediately upon such cancellation or expiration
shall be equal to the Warrant Price in effect at the
time of the issuance of the expired or cancelled
Common Stock Equivalents, with such additional
adjustments as would have been made to the Warrant
Price had the expired or cancelled Common Stock);
Equivalents not been issued.
3.4 Other Action Affecting Common Stock. (a) If the Company takes any
action affecting its Common Stock after the date hereof (including
dividends and distributions), other than an action described in any of
Sections 3.1 and 3.2 hereof, which would have a material adverse
effect upon Holder's rights hereunder, the Warrant Price shall be
adjusted downward in such manner and at such time as the Board of
Directors of the Company shall in good faith determine to be equitable
under the circumstances.
(b) In case the Company shall make any distribution of
its assets to holders of its Common Stock as a liquidation or partial
liquidation dividend or by ways of return of capital, or other than as
a dividend payable out of earnings or surplus legally available for
dividends under the laws of the state of incorporation of the Company,
and Holder exercises this Warrant within thirty (30) days after the
later of (i) the record date for the determination of the holders of
Common Stock entitled to such distribution of assets and (ii) the date
upon which notice of such distribution is delivered by the Company to
Holder, Holder shall be entitled to receive, for no additional
consideration, in addition to the Warrant Stock, the amount of such
assets (or, at the option of the Company. a sum equal to the value
thereof at the time of such distribution, such value to be determined
by the Board of Directors of the Company in good faith) that would
have been payable to the Holder had it been the holder of record of
the Warrant Stock on such record date.
(c) In case the Company shall liquidate or wind up its
affairs, the Holder shall be entitled, upon the exercise hereof, to
receive, in lieu of the shares of Warrant Stock; that the Holder would
have been entitled to receive, the same kind and amount of assets as
would have been issued, paid or otherwise distributed to the Holder
upon such dissolution, liquidation or winding up with respect to such
shares of Warrant Stock, had
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the Holder been the holder of record of such shares of Warrant Stock
on the record date for the determination of those entitled to receive
any such distribution; provided, however, that all rights under this
Warrant shall terminate on a date fixed by the Company, such date to
be not earlier than the date of commencement of proceedings for
dissolution, liquidation or winding up and not later than thirty (30)
days after such date of commencement, unless the Holder shall have,
prior to such termination date, exercised this Warrant. Written
notice of such termination of rights under this Warrant shall be given
to the Holder at least thirty (30) days prior to such termination
date.
3.5 Time of Adjustments to the Warrant Price. All adjustments to the
Warrant Price and the number of shares purchasable hereunder, unless
otherwise specified herein, shall be effective as of the earlier of:
(i) the date of issue (or date of sale, if earlier) of
the security causing the adjustment;
(ii) the effective date of a division or combination of
shares;
(iii) the record date of any action of holders of the
Company's capital stock of any class taken for the
purpose of dividing or combining shares or entitling
shareholders to receive a distribution or dividends.
3.6 Notice of Adjustments. In each case of an adjustment in the Warrant
Price and the number of shares purchasable hereunder, the Company, at
its expense, shall cause the Treasurer or chief financial officer of
the Company to compute such adjustment and prepare a certificate
setting forth such adjustment and showing in detail the facts upon
which such adjustment is based. The Company shall promptly mail a copy
of each such certificate to Holder pursuant to Section 6.9 hereof.
3.7 Duration of Adjusted Warrant Price. Following each adjustment of the
Warrant Price such adjusted Warrant Price shall remain in effect until
a further adjustment of the Warrant Price.
3.8 Adjustment of Number of Shares. Upon each adjustment of the Warrant
Price pursuant to this Section 3, the number of shares of Warrant
Stock shall be adjusted to the nearest whole share, to the number
obtained by dividing the Aggregate Price by the Warrant Price as
adjusted.
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ARTICLE IV
TRANSFER, EXCHANGE AND LOSS
4.1 Transfer. This Warrant is transferable on the books of the Company at
its principal office by the registered Holder hereof upon surrender of
this Warrant properly endorsed, subject to compliance with federal and
state securities laws. The Company shall issue and deliver to the
transferee a new Warrant or Warrants representing the Warrants so
transferred. Upon any partial transfer, the Company will issue and
deliver to Holder a new Warrant or Warrants with respect to the
Warrants not so transferred. Notwithstanding the foregoing, Holder
shall not be entitled to transfer a number of shares or an interest in
this Warrant representing less than five percent (5%) of the aggregate
shares initially covered by this Warrant. Any transferee shall be
subject to the same restrictions on transfer with respect to this
Warrant as the Purchaser.
4.9 Securities Laws. Upon any issuance of shares of Common Stock upon
exercise of this warrant, it shall be the Company's responsibility to
comply with the requirements of: (1) the 1933 Securities Act; (2) the
Securities Exchange Act of 1934, as amended; (3) any applicable
listing requirements of any national securities exchange; (4) any
state securities regulation or "Blue Sky" laws; and (5) requirements
under any other law or regulation applicable to the issuance or
transfer of such shares. If required by the Company, in connection
with each issuance of shares of Common Stock upon exercise of this
Warrant, the Holder will give: (i) assurances in writing, satisfactory
to the Company, that such shares are not being purchased with a view
to the distribution thereof in violation of applicable laws, (ii)
sufficient information, in writing, to enable the Company to rely on
exemptions from the registration or qualification requirements of
applicable laws, if available, with respect to such exercise, (iii)
the legal opinion required by the restrictive legend set forth at the
beginning of this Warrant, and (iv) its cooperation to the Company in
connection with such compliance.
4.3 Exchange. Subject to compliance with applicable federal and state
securities laws, this Warrant is exchangeable at the principal office
of the Company for Warrants to purchase the same number of shares of
Common Stock purchasable hereunder, each new Warrant to represent the
right to purchase such number of shares of Common Stock as Holder
shall designate at the time of such exchange. Each new Warrant shall
be identical in form and content to this Warrant, except for
appropriate changes in the number of shares of Common Stock covered
thereby, the aggregate purchase price of such shares, the percentage
stated in Section 4.1 above, and any other changes which are necessary
in order to prevent the Warrant exchange from changing the respective
rights and obligations of the Company and the Holder as they existed
immediately prior to such exchange.
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4.4 Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it of the ownership of, and the loss, theft,
destruction or mutilation of, this Warrant and (in the case of loss,
theft, or destruction) of indemnity satisfactory to it, and (in the
case of mutilation) upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant.
ARTICLE V
HOLDER RIGHTS
5.1 No Shareholder Rights Until Exercise. No Holder hereof, solely by
virtue hereof, shall be entitled to any rights as a shareholder of the
Company. Holder shall have all rights of a shareholder with respect
to securities purchased upon exercise hereof at the time of cash or
deemed exercise pursuant to Sections 2.1 and 2.2 hereof.
5.2 Registration Rights. The Company agrees that any shares of Common
Stock issued to Holder upon exercise of this Warrant shall be subject
to the registration rights set forth in the Registration Rights
Agreement of even date herewith among the Company, the Purchaser and
others.
ARTICLE VI
MISCELLANEOUS
6.1 Additional Covenants by the Company. The Company further covenants
and agrees that it will:
a. Give each Holder prompt written notice of any
intended changes to the composition of its capital
structure, whether by issuance of new securities or
otherwise;
b. Give each Holder written notice of any shareholders'
meeting and will allow a representative of each
Holder to attend such meetings;
c. Give each Holder at least five days' prior written
notice of any action that the Company intends to take
by shareholders' written consent;
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d. Allow, upon reasonable notice and at reasonable
times, the inspection of its minute book and other
corporate records by a representative of the Holder;
and
e. Not engage, other than on arm's length terms, in any
transaction with any of its shareholders or
affiliates (as such term is defined under Rule 144
issued by the Securities and Exchange Commission
under the 1933 Securities Act, as amended).
6.2 Governmental Approvals. The Company will from time to time take all
action which may be necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and securities acts filings under federal and state laws,
which may be or become requisite in connection with the issuance,
sale, and delivery of this Warrant, and the issuance. sale and
delivery of the shares of Common Stock or other securities or property
issuable or deliverable upon exercise of this Warrant.
6.1 Governing Laws. It is the intention of the parties hereto that except
as set forth below, the internal laws of the State of Connecticut,
U.S.A. (irrespective of its choice of law principles) shall govern the
validity of this warrant, the construction of its terms. and the
interpretation and enforcement of the rights and duties of the parties
hereto, provided that the corporation laws of the State of Delaware
shall govern the procedural and substantive matters pertaining to the
due authorization, issuance, delivery and exercise of this Warrant and
the shares of Common Stock upon exercise hereof. Except as set forth
below, the parties hereby agree that any suit to enforce any provision
of this Warrant arising out of or based upon this Warrant or the
business relationship between any of the parties hereto shall be
brought in the United States District Court for the District of
Delaware or the courts of the State of Delaware located in Wilmington,
Delaware. Each party hereby agrees that such courts shall have
personal jurisdiction and venue with respect to such party, and each
party hereby submits to the personal jurisdiction and venue of such
courts. In addition to the foregoing jurisdiction, Holder at its sole
option, may commence any such suit in any jurisdiction in which the
Company has a business office or is incorporated.
6.4 Binding Upon Successors and Assigns. Subject to, and unless otherwise
provided in, this Warrant, each and all of the covenants, terms
provisions, and agreements contained herein shall be binding upon, and
inure to the benefit of the permitted successors. executors, heirs,
representatives, administrators and assigns of the parties hereto.
6.5 Severability. If any one or more provisions of this Warrant, or the
application thereof, shall for any reason and to any extent be invalid
or unenforceable, the remainder of this Warrant and the application of
such provisions to other persons or circumstances shall be
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interpreted so as best to reasonably effect the intent of the parties
hereto. The parties further agree to replace any such void or
unenforceable provisions of this Warrant with valid and enforceable
provisions which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
6.6 Default, Amendment and Waivers. This Warrant may be amended upon the
written consent of the Company and the Holder. The waiver by a party
of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to
constitute a waiver of any other default or any succeeding breach or
default. It shall be an event of default under this Warrant if the
Company breaches any term or condition hereof or fails to perform any
obligation as and when required hereunder and such breach or failure
is not cured within thirty (30) days after receiving written notice
thereof from Holder. Upon such event of default, the Warrant Price for
all shares shall be reduced by one-fifth and thereafter shall continue
to be reduced by one-fifth from the then adjusted Warrant Price for
each successive thirty (30) day period in which such breach is not
cured.
6.7 No Waiver. The failure of any party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
6.8 Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Warrant, the prevailing party shall be entitled to
recover, as an element of the costs of suit and not as damages,
reasonable attorneys fees to be fixed by the court (including without
limitation, costs, expenses and fees on any appeal). The prevailing
party shall be the party entitle to recover its costs of suit,
regardless of whether such suit proceeds to final judgment. A party
not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in
calculating the amount of a judgment for purposes of determining if a
party is entitled to recover costs or attorneys' fees.
6.9 Notices. Whenever any party hereto desires or is required to give any
notices, demand, or request with respect to this Warrant, each such
communication shall be in writing and shall be effective only if it
is delivered by personal service or delivered by a nationally
recognized overnight courier, in each case addressed to the parties
hereto at their respective addresses set forth at the beginning of
this Agreement. Such communication shall be effective when they are
received by the addressee thereof. Any party may change its address
for such communications by giving notice thereof to the other party
in conformity with this Section.
6.10 Time. Time is of the essence of this Warrant.
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6.11 Construction of Agreement. This Warrant has been negotiated by the
respective parties hereto and their attorneys and the language hereof
shall not be construed for or against any party.
6.12 No Endorsement. Holder understands that no federal or state
securities administrator has made any finding or determination
relating to the fairness of investment in the Company or purchase of
the Common Stock hereunder and that no federal or state securities
administrator has recommended or endorsed the offering of securities
by the Company hereunder.
6.13 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
6.14 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be
reasonably requested by any other party to better evidence and reflect
the transactions described herein and contemplated hereby, and to
carry into effect the intents and purposes of this Warrant.
IN WITNESS WHEREOF, the undersigned Company has caused this Common
Stock Warrant to be executed and delivered on the date first above written by
its President, thereunto duly authorized.
COMPANY:
Centrum Industries, Inc.
By: /s/ George H. Wells
------------------------------
George Wells
Its President
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EXHIBIT 4.16
COMMON STOCK WARRANT
August 1, 1997
NEITHER THIS WARRANT, NOR THE STOCK TO BE ISSUED UPON EXERCISE HEREOF, HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 SECURITIES
ACT"), OR QUALIFIED OR REGISTERED UNDER ANY STATE SECURITIES LAWS (THE "STATE
SECURITIES LAWS"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED
UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR
OTHER DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 SECURITIES ACT AND COMPLIANCE WITH THE APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER AND ITS
COUNSEL, THAT SAID REGISTRATION IS NOT REQUIRED UNDER THE 1933 SECURITIES ACT
AND THAT APPLICABLE STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH.
WARRANT
Void after March 8, 2004
No. 6 Warrant to Purchase Common Stock
$.05 Par Value
This certifies that FIRST NEW ENGLAND CAPITAL LP ("Purchaser"),
having an address of 100 Pearl Street, Hartford, Connecticut 06103, or any
party to whom this Warrant is assigned in compliance with the terms hereof
(Purchaser and any such assignee being hereafter sometimes referred to as
"Holder"), is entitled to subscribe to and purchase, (i) during the period
commencing at the date first set forth above and ending at 5 p.m. Toledo, Ohio
local time, on the "Expiration Date" (as defined below), TWO THOUSAND TWO
HUNDRED THIRTY ONE (2,231) shares of fully paid and nonassessable Common Stock
(as hereinafter defined of CENTRUM INDUSTRIES, INC. (the "Company"), a Delaware
corporation with its principal place of business at 6135 Trust Drive, Suite
104A, Holland, Ohio 43528. This Warrant is one of a series of Warrants
identical in form issued by the Company pursuant to the Agreement (as defined
below), and the Holder, by acceptance hereof, agrees to be bound by the
provisions of such Agreement as applicable to this Warrant. The purchase price
of each such share of Common Stock shall be the Warrant Price as defined below.
This Warrant was originally issued to Purchaser pursuant to the Agreement (as
defined below).
<PAGE> 2
ARTICLE I
DEFINITIONS
1.1 "Aggregate Price" shall mean the product, at any time of reference, of
(i) the Warrant Price multiplied by (ii) the number of shares of
Warrant Stock.
1.2 "Agreement" shall mean that certain Note and Warrant Purchase
Agreement entered into by and between Purchaser, among others, and the
Company of even date herewith.
1.3 "Common Stock" shall mean and include the Company's common stock, par
value $.05, as constituted on the date hereof, and shall also include
any capital stock of any class or series of the Company's hereafter
authorized which shall substitute for or replace the Common Stock as
constituted on the date hereof; provided, however, that in the event
the Company authorizes one or more classes or series of capital stock
qualifying as "Common Stock" for purposes of the foregoing definition,
in addition to the class of authorized capital stock denominated as
"Common Stock" in the Company's Certificate of Incorporation as of the
date hereof, the Holder shall have the right to designate at each time
it exercises its rights hereunder the class or series of authorized
capital stock that it elects to purchase in satisfaction of its rights
hereunder.
1.4 "Common Stock Equivalents" shall mean Convertible Securities and
Rights.
1.5 "Convertible Securities" means any securities which are directly or
indirectly convertible into Common Stock.
1.6 "Effective Price" means the quotient obtained by dividing (i) Minimum
Consideration by (ii) Maximum Shares Upon Exercise.
1.7 "Expiration Date" means March 8, 2004.
1.8 "Maximum Shares Upon Exercise" means the maximum number of shares of
Common Stock issuable under a Common Stock Equivalent upon complete
exercise and full conversion of all Rights or Convertible Securities
represented thereby, computed without regard to contingent adjustments
to the number of shares issuable upon exercise and conversion.
1.9 "Minimum Consideration" means the minimum aggregate consideration paid
or payable at any time for the purchase of the Common Stock
Equivalents during the term of the Common Stock Equivalents, and upon
complete exercise and full conversion of the Common Stock Equivalents,
computed without regard to contingent adjustments to exercise or
conversion price.
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1.10 "Notes" means the Company's 11% Convertible Subordinated Notes due
March 31, 2001, one or more of which has been issued by the Company
on the date hereof to the Purchaser, among others, together with any
note issued in exchange therefor or replacement thereof.
1.11 "Rights" means any options, warrants, or rights to purchase Common
Stock or Convertible Securities.
1.12 "Warrant Price" shall mean Two and 00/100 ($2.00) Dollars for each
share of Common Stock subject, however, to reduction pursuant to
Section 3.5 hereof.
1.13 "Warrant Stock" shall mean 2,231 shares of Common Stock, subject to
reduction as provided in Section 2.2 hereof.
ARTICLE II
EXERCISE AND PAYMENT
2.1 Cash Exercise. The purchase rights represented by this Warrant may be
exercised by Holder, in whole or in part, by written notice of
exercise delivered to the Company at least twenty (20) days prior to
the intended date of exercise and by the surrender of this Warrant at
the principal office of the Company, and by the payment to the
Company, by certified, cashier's or other check acceptable to the
Company, of an amount equal to the aggregate Warrant Price of the
shares being purchased.
2.2 Deemed Exercise Upon Conversion of Notes. In lieu of exercising this
Warrant pursuant to Section 2.1, Holder may elect to convert all or a
portion of the outstanding principal balance of any of the Notes into
shares of Common Stock at a conversion price equal to the Warrant
Price pursuant to the terms of such Note, in which event this Warrant
shall be deemed, without further act or instrument, to have been
exercised for a number of shares of Common Stock equal to the number
of shares of Common Stock received by the Purchaser upon such
conversion, and the number of shares of Warrant Stock subject to this
Warrant shall be reduced by an equal number of shares, and this
Warrant shall remain in full force and effect with respect to such
reduced number of shares of Warrant Stock. The foregoing conversion
shall be effected by delivery of a written notice to the Company at
least twenty (20) days prior to the intended date of conversion
specifying the amount of outstanding principal to be converted. By
way of example and illustration only, if the Purchaser elects to
convert $100 of the outstanding principal balance of a Note and
receives 50 shares of Common Stock upon such conversion, the number of
shares of Warrant Stock subject to this Warrant shall be reduced from
2,231 to 2,181 and this Warrant shall remain in full force and effect
with respect to such 2,181 shares of Warrant Stock.
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2.3 Stock Certificate. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common
Stock so purchased shall be delivered to Holder within a reasonable
time and, unless this Warrant has been fully exercised or has expired,
a new Warrant representing the number of shares of Common Stock with
respect to which this Warrant shall not have been exercised shall also
be issued to Holder within such time.
2.4 Stock Fully Paid; Reservation of Shares. The Company covenants and
agrees that all Common Stock which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be fully
paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof (excluding taxes based on the income of
Holder), provided that any such shares of Common Stock shall be
subject to the restrictions, obligations and duties imposed upon
stockholders of the Company pursuant to that certain Equity Holders'
Agreement, of even date herewith, among the Company and the Purchaser,
among others, as the same may be amended and supplemented to and
including the date hereof (the "Equity Holders' Agreement"), and shall
be subject to applicable restrictions imposed by relevant federal and
state securities laws relating to capital stock sold in a private
placement. The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved
for issuance a sufficient number of shares of its Common Stock as
would be required upon the full exercise of the rights represented by
this Warrant.
2.5 Fractional Shares. No fractional share of Common Stock will be issued
in connection with any exercise hereof, but in lieu of a fractional
share upon complete exercise hereof, Holder may purchase a whole share
at the then effective Warrant Price.
ARTICLE III
CERTAIN ADJUSTMENTS OF NUMBER OF
SHARES PURCHASABLE AND WARRANT PRICE
The number and kind of securities purchasable upon the exercise of
this Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the occurrence of certain events, as follows:
3.1 Reclassification, Consolidation or Merger. In case of: (i) any
reclassification or change of outstanding securities issuable upon
exercise of this Warrant; (ii) any consolidation or merger of the
Company with or into another corporation (other than a merger with
another corporation in which the Company is a continuing corporation
and which does not result in any reclassification, change or exchange
of outstanding securities issuable
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upon exercise of this Warrant); or (iii) any sale or transfer to
another corporation of all, or substantially all, of the property of
the Company, then, and in each such event, the Company or such
successor or purchasing corporation, as the case may be, shall execute
a new Warrant which will provide that Holder shall have the right to
exercise such new Warrant and purchase upon such exercise, in lieu of
each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind and amount of securities, money and property
receivable upon such reclassification, change, consolidation, merger,
sale or transfer by a holder of one share of Common Stock issuable
upon exercise of this Warrant had this Warrant been exercised
immediately prior to such reclassification, change, consolidation,
merger, sale or transfer. Such new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided in this Section 3 and the provisions of
this Section 3.1, shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
transfers.
3.2 Subdivision or Combination of Shares. If the Company shall at any
time while this Warrant remains outstanding and unexercised in whole
or in part: (i) divide its Common Stock, the Warrant Price shall be
proportionately reduced; or (ii) combine shares of is Common Stock,
the Warrant Price shall be proportionately increased.
3.3 Adjustment for Issue or Sale of Shares at Less Than the Warrant Price.
If, in a transaction other than an issuance excepted from these
provisions as set forth below or an issuance that causes an adjustment
under Sections 3.1 or 3.2, the Company shall at any time or from time
to time, issue any additional shares of Common Stock without
consideration or for a net consideration per share less than the
Warrant Price in effect immediately prior to such issuance, then, and
in each case, the Warrant Price shall be lowered to an amount equal to
the lowest per share price received, or deemed received, by the
Company as consideration for such Shares.
For purposes of this Section 3.3:
(i) There shall be no adjustment under this Section 3.3
for any sales or issuances: (a) in a transaction in
which an adjustment will be made pursuant to Section
3.1 or 3.2; or (b) pursuant to that certain
Confidential Private Placement Memorandum of the
Company dated November 15, 1995 for the sale of up to
2,400,000 shares of the Company's common stock at a
price of $1.50 per share; or (c) upon the Company's
granting to George Wells, no later than ninety (90)
days after March 31, 1996 fiscal year at the
discretion of the Company's Board of Directors, based
upon satisfaction of certain incentive goals, an
option or options to purchase up to 150,000 shares of
the Company's common stock at a price of $1.50 per
share;
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(ii) The issuance of Common Stock Equivalents shall be
deemed an issuance at such time of the shares of
Common Stock underlying the Common Stock Equivalents.
If the Effective Price shall be less than the Warrant
Price at the time of such issuance, then an
adjustment in the Warrant Price shall be made upon
each such issuance in the manner provided in this
Section 3.3. No adjustment of the Warrant Price shall
be made under this Section 3.3 upon the issuance of
shares of Common Stock upon the exercise or
conversion of Common Stock Equivalents if an
adjustment has previously been made as above
provided. Any adjustment of the Warrant Price shall
be disregarded, if, as and when such Common Stock
Equivalents expire or are cancelled without being
exercised so that the Warrant Price effective
immediately upon such cancellation or expiration
shall be equal to the Warrant Price in effect at the
time of the issuance of the expired or cancelled
Common Stock Equivalents, with such additional
adjustments as would have been made to the Warrant
Price had the expired or cancelled Common Stock);
Equivalents not been issued.
3.4 Other Action Affecting Common Stock. (a) If the Company takes any
action affecting its Common Stock after the date hereof (including
dividends and distributions), other than an action described in any of
Sections 3.1 and 3.2 hereof, which would have a material adverse
effect upon Holder's rights hereunder, the Warrant Price shall be
adjusted downward in such manner and at such time as the Board of
Directors of the Company shall in good faith determine to be equitable
under the circumstances.
(b) In case the Company shall make any distribution of
its assets to holders of its Common Stock as a liquidation or partial
liquidation dividend or by ways of return of capital, or other than as
a dividend payable out of earnings or surplus legally available for
dividends under the laws of the state of incorporation of the Company,
and Holder exercises this Warrant within thirty (30) days after the
later of (i) the record date for the determination of the holders of
Common Stock entitled to such distribution of assets and (ii) the date
upon which notice of such distribution is delivered by the Company to
Holder, Holder shall be entitled to receive, for no additional
consideration, in addition to the Warrant Stock, the amount of such
assets (or, at the option of the Company. a sum equal to the value
thereof at the time of such distribution, such value to be determined
by the Board of Directors of the Company in good faith) that would
have been payable to the Holder had it been the holder of record of
the Warrant Stock on such record date.
(c) In case the Company shall liquidate or wind up its
affairs, the Holder shall be entitled, upon the exercise hereof, to
receive, in lieu of the shares of Warrant Stock; that the Holder would
have been entitled to receive, the same kind and amount of assets as
would have been issued, paid or otherwise distributed to the Holder
upon such dissolution, liquidation or winding up with respect to such
shares of Warrant Stock, had
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the Holder been the holder of record of such shares of Warrant Stock
on the record date for the determination of those entitled to receive
any such distribution; provided, however, that all rights under this
Warrant shall terminate on a date fixed by the Company, such date to
be not earlier than the date of commencement of proceedings for
dissolution, liquidation or winding up and not later than thirty (30)
days after such date of commencement, unless the Holder shall have,
prior to such termination date, exercised this Warrant. Written
notice of such termination of rights under this Warrant shall be given
to the Holder at least thirty (30) days prior to such termination
date.
3.5 Time of Adjustments to the Warrant Price. All adjustments to the
Warrant Price and the number of shares purchasable hereunder, unless
otherwise specified herein, shall be effective as of the earlier of:
(i) the date of issue (or date of sale, if earlier) of
the security causing the adjustment;
(ii) the effective date of a division or combination of
shares;
(iii) the record date of any action of holders of the
Company's capital stock of any class taken for the
purpose of dividing or combining shares or entitling
shareholders to receive a distribution or dividends.
3.6 Notice of Adjustments. In each case of an adjustment in the Warrant
Price and the number of shares purchasable hereunder, the Company, at
its expense, shall cause the Treasurer or chief financial officer of
the Company to compute such adjustment and prepare a certificate
setting forth such adjustment and showing in detail the facts upon
which such adjustment is based. The Company shall promptly mail a copy
of each such certificate to Holder pursuant to Section 6.9 hereof.
3.7 Duration of Adjusted Warrant Price. Following each adjustment of the
Warrant Price such adjusted Warrant Price shall remain in effect until
a further adjustment of the Warrant Price.
3.8 Adjustment of Number of Shares. Upon each adjustment of the Warrant
Price pursuant to this Section 3, the number of shares of Warrant
Stock shall be adjusted to the nearest whole share, to the number
obtained by dividing the Aggregate Price by the Warrant Price as
adjusted.
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ARTICLE IV
TRANSFER, EXCHANGE AND LOSS
4.1 Transfer. This Warrant is transferable on the books of the Company at
its principal office by the registered Holder hereof upon surrender of
this Warrant properly endorsed, subject to compliance with federal and
state securities laws. The Company shall issue and deliver to the
transferee a new Warrant or Warrants representing the Warrants so
transferred. Upon any partial transfer, the Company will issue and
deliver to Holder a new Warrant or Warrants with respect to the
Warrants not so transferred. Notwithstanding the foregoing, Holder
shall not be entitled to transfer a number of shares or an interest in
this Warrant representing less than five percent (5%) of the aggregate
shares initially covered by this Warrant. Any transferee shall be
subject to the same restrictions on transfer with respect to this
Warrant as the Purchaser.
4.9 Securities Laws. Upon any issuance of shares of Common Stock upon
exercise of this warrant, it shall be the Company's responsibility to
comply with the requirements of: (1) the 1933 Securities Act; (2) the
Securities Exchange Act of 1934, as amended; (3) any applicable
listing requirements of any national securities exchange; (4) any
state securities regulation or "Blue Sky" laws; and (5) requirements
under any other law or regulation applicable to the issuance or
transfer of such shares. If required by the Company, in connection
with each issuance of shares of Common Stock upon exercise of this
Warrant, the Holder will give: (i) assurances in writing, satisfactory
to the Company, that such shares are not being purchased with a view
to the distribution thereof in violation of applicable laws, (ii)
sufficient information, in writing, to enable the Company to rely on
exemptions from the registration or qualification requirements of
applicable laws, if available, with respect to such exercise, (iii)
the legal opinion required by the restrictive legend set forth at the
beginning of this Warrant, and (iv) its cooperation to the Company in
connection with such compliance.
4.3 Exchange. Subject to compliance with applicable federal and state
securities laws, this Warrant is exchangeable at the principal office
of the Company for Warrants to purchase the same number of shares of
Common Stock purchasable hereunder, each new Warrant to represent the
right to purchase such number of shares of Common Stock as Holder
shall designate at the time of such exchange. Each new Warrant shall
be identical in form and content to this Warrant, except for
appropriate changes in the number of shares of Common Stock covered
thereby, the aggregate purchase price of such shares, the percentage
stated in Section 4.1 above, and any other changes which are necessary
in order to prevent the Warrant exchange from changing the respective
rights and obligations of the Company and the Holder as they existed
immediately prior to such exchange.
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4.4 Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it of the ownership of, and the loss, theft,
destruction or mutilation of, this Warrant and (in the case of loss,
theft, or destruction) of indemnity satisfactory to it, and (in the
case of mutilation) upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant.
ARTICLE V
HOLDER RIGHTS
5.1 No Shareholder Rights Until Exercise. No Holder hereof, solely by
virtue hereof, shall be entitled to any rights as a shareholder of the
Company. Holder shall have all rights of a shareholder with respect
to securities purchased upon exercise hereof at the time of cash or
deemed exercise pursuant to Sections 2.1 and 2.2 hereof.
5.2 Registration Rights. The Company agrees that any shares of Common
Stock issued to Holder upon exercise of this Warrant shall be subject
to the registration rights set forth in the Registration Rights
Agreement of even date herewith among the Company, the Purchaser and
others.
ARTICLE VI
MISCELLANEOUS
6.1 Additional Covenants by the Company. The Company further covenants
and agrees that it will:
a. Give each Holder prompt written notice of any
intended changes to the composition of its capital
structure, whether by issuance of new securities or
otherwise;
b. Give each Holder written notice of any shareholders'
meeting and will allow a representative of each
Holder to attend such meetings;
c. Give each Holder at least five days' prior written
notice of any action that the Company intends to take
by shareholders' written consent;
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d. Allow, upon reasonable notice and at reasonable
times, the inspection of its minute book and other
corporate records by a representative of the Holder;
and
e. Not engage, other than on arm's length terms, in any
transaction with any of its shareholders or
affiliates (as such term is defined under Rule 144
issued by the Securities and Exchange Commission
under the 1933 Securities Act, as amended).
6.2 Governmental Approvals. The Company will from time to time take all
action which may be necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and securities acts filings under federal and state laws,
which may be or become requisite in connection with the issuance,
sale, and delivery of this Warrant, and the issuance. sale and
delivery of the shares of Common Stock or other securities or property
issuable or deliverable upon exercise of this Warrant.
6.1 Governing Laws. It is the intention of the parties hereto that except
as set forth below, the internal laws of the State of Connecticut,
U.S.A. (irrespective of its choice of law principles) shall govern the
validity of this warrant, the construction of its terms. and the
interpretation and enforcement of the rights and duties of the parties
hereto, provided that the corporation laws of the State of Delaware
shall govern the procedural and substantive matters pertaining to the
due authorization, issuance, delivery and exercise of this Warrant and
the shares of Common Stock upon exercise hereof. Except as set forth
below, the parties hereby agree that any suit to enforce any provision
of this Warrant arising out of or based upon this Warrant or the
business relationship between any of the parties hereto shall be
brought in the United States District Court for the District of
Delaware or the courts of the State of Delaware located in Wilmington,
Delaware. Each party hereby agrees that such courts shall have
personal jurisdiction and venue with respect to such party, and each
party hereby submits to the personal jurisdiction and venue of such
courts. In addition to the foregoing jurisdiction, Holder at its sole
option, may commence any such suit in any jurisdiction in which the
Company has a business office or is incorporated.
6.4 Binding Upon Successors and Assigns. Subject to, and unless otherwise
provided in, this Warrant, each and all of the covenants, terms
provisions, and agreements contained herein shall be binding upon, and
inure to the benefit of the permitted successors. executors, heirs,
representatives, administrators and assigns of the parties hereto.
6.5 Severability. If any one or more provisions of this Warrant, or the
application thereof, shall for any reason and to any extent be invalid
or unenforceable, the remainder of this Warrant and the application of
such provisions to other persons or circumstances shall be
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interpreted so as best to reasonably effect the intent of the parties
hereto. The parties further agree to replace any such void or
unenforceable provisions of this Warrant with valid and enforceable
provisions which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
6.6 Default, Amendment and Waivers. This Warrant may be amended upon the
written consent of the Company and the Holder. The waiver by a party
of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to
constitute a waiver of any other default or any succeeding breach or
default. It shall be an event of default under this Warrant if the
Company breaches any term or condition hereof or fails to perform any
obligation as and when required hereunder and such breach or failure
is not cured within thirty (30) days after receiving written notice
thereof from Holder. Upon such event of default, the Warrant Price for
all shares shall be reduced by one-fifth and thereafter shall continue
to be reduced by one-fifth from the then adjusted Warrant Price for
each successive thirty (30) day period in which such breach is not
cured.
6.7 No Waiver. The failure of any party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
6.8 Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Warrant, the prevailing party shall be entitled to
recover, as an element of the costs of suit and not as damages,
reasonable attorneys fees to be fixed by the court (including without
limitation, costs, expenses and fees on any appeal). The prevailing
party shall be the party entitle to recover its costs of suit,
regardless of whether such suit proceeds to final judgment. A party
not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in
calculating the amount of a judgment for purposes of determining if a
party is entitled to recover costs or attorneys' fees.
6.9 Notices. Whenever any party hereto desires or is required to give any
notices, demand, or request with respect to this Warrant, each such
communication shall be in writing and shall be effective only if it
is delivered by personal service or delivered by a nationally
recognized overnight courier, in each case addressed to the parties
hereto at their respective addresses set forth at the beginning of
this Agreement. Such communication shall be effective when they are
received by the addressee thereof. Any party may change its address
for such communications by giving notice thereof to the other party
in conformity with this Section.
6.10 Time. Time is of the essence of this Warrant.
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6.11 Construction of Agreement. This Warrant has been negotiated by the
respective parties hereto and their attorneys and the language hereof
shall not be construed for or against any party.
6.12 No Endorsement. Holder understands that no federal or state
securities administrator has made any finding or determination
relating to the fairness of investment in the Company or purchase of
the Common Stock hereunder and that no federal or state securities
administrator has recommended or endorsed the offering of securities
by the Company hereunder.
6.13 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
6.14 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be
reasonably requested by any other party to better evidence and reflect
the transactions described herein and contemplated hereby, and to
carry into effect the intents and purposes of this Warrant.
IN WITNESS WHEREOF, the undersigned Company has caused this Common
Stock Warrant to be executed and delivered on the date first above written by
its President, thereunto duly authorized.
COMPANY:
Centrum Industries, Inc.
By: /s/ George H. Wells
-------------------
George Wells
Its President
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