<PAGE>
As filed with the Securities and Exchange Commission on June 28, 1996
Registration No. 333-_____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
JAVA CENTRALE, INC.
-------------------------------------------------------
(Exact name of registrant as specified in its charter)
California 68-0268780
-------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1610 Arden Way, Suite 145, Sacramento, California 95814
-------------------------------------------------------
(Address of Principal Executive Offices)
Consulting Agreements
------------------------
(Full title of the Plan)
Steven J. Orlando
Vice President and Chief Financial Officer
1610 Arden Way, Suite 145, Sacramento, California 95814
-------------------------------------------------------
(Name and address of agent for service)
(916) 568-2310
-------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share(1) Price(1) Fee
________________________________________________________________________________
Common
Stock(2) 1,200,000 $0.90 $1,068,750 $369
______________________________________________________________________________
(1) Estimated solely for the purpose of determining the registration fee,
based, in accordance with Rule 457(h), on the average of high and low
prices at which the Registrant's Common Stock was sold on June 27, 1996.
(2) Pursuant to Rule 416, there are also being registered such additional
shares as may be required for issuance pursuant to the anti-dilution
provisions of the Warrants described herein.
Please send copies of all communications to:
Philip S. Boone, Jr., Esq.
Rosenblum, Parish & Isaacs, PC
555 Montgomery Street, 15th Floor
San Francisco, California 94111
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference: (a) the Registrant's
Annual Report on Form 10-K for the fiscal year ending March 31, 1995, (b) all
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since
the end of the fiscal year covered by the Annual Report referred to in (a)
above, and (c) the description of the Registrant's Common Stock contained in its
Registration Statement on Form S-1 (Registration No. 33-76528) filed on March
17, 1994, including any amendment or report filed for the purpose of updating
such description.
ITEM 4. Description of Securities
4.1 COMMON STOCK. The Registrant herein incorporates by reference (i) the
description of the Registrant's no par value Common Stock (the "Common Stock")
contained in its Registration Statement on Form S-1 (Registration No. 33-76528)
filed on March 17, 1994, and (ii) any amendment or report filed for the purpose
of updating such description.
The securities being registered hereby consist of (a) 500,000 shares of
Common Stock which may be obtained by the holders of the GSV Warrants described
in paragraph 4.2.1 below, (b) 350,000 shares of Common Stock which may be
obtained by the holders of the Hayden Warrants described in paragraph 4.2.2
below, and (c) 350,000 shares of Common Stock which may be obtained by the
holders of the MPR Warrants described in paragraph 4.2.3 below, in each case
upon exercise thereof by the holders of such Warrants. Pursuant to Rule 416,
there are also being registered such additional shares as may be required for
issuance pursuant to the anti-dilution provisions of such Warrants.
4.2 STOCK PURCHASE WARRANTS. The securities being registered hereby
include all of the shares of Common Stock which may be obtained upon exercise of
the Warrants described below, but do not include any of the Warrants themselves.
The Warrants have been issued by the Company to three different consultants, in
the form of three separate but substantively identical Warrant Agreements, as
described below.
4.2.1 GSV WARRANT. (a) The first of the Warrants referred to above is
reflected in that certain Stock Purchase Warrant, dated as of June 12, 1996,
issued to Growth Science Ventures, Inc., a Nevada corporation ("GSV"),
representing the right to purchase up to 500,000 shares of the Registrant's
Common Stock (the "GSV Warrant"). Under the terms of the GSV Warrant, GSV has
the right to purchase up to 250,000 shares of Common Stock at a purchase price
of Twenty-Five Cents ($0.25) per share, and an additional 250,000 shares at a
purchase price of One Dollar and Fifty Cents ($1.50) per share.
-2-
<PAGE>
(b) Both the number of shares which may be obtained upon exercise of the
GSV Warrant and the exercise price per share are subject to adjustment in the
event that the outstanding shares of the Company's Common Stock are increased or
decreased through a stock split, stock dividend, stock consolidation, or
otherwise, without consideration to the Company. If such an event takes place,
an appropriate and proportionate adjustment must be made in the number and kind
of shares as to which the unexercised portion of the GSV Warrant may be
exercised, and a corresponding adjustment must also be made to the exercise
price per share of Common Stock attributable to any unexercised portion of the
GSV Warrant.
(c) The GSV Warrant was issued in the form of one single non-transferrable
Warrant representing the right to purchase from the Registrant up to 500,000
shares of Common Stock, as partial compensation for certain consulting services
provided and to be provided to the Registrant by GSV. None of the consulting
services in question were rendered in connection with the offer or sale of any
securities in a capital-raising transaction. Although, as described in
paragraph 4.1, above, the shares of Common Stock underlying the GSV Warrant are
being registered hereby, the GSV Warrant itself is not.
4.2.2 HAYDEN GROUP WARRANTS. The second Stock Purchase Warrant referred
to above is reflected in that certain Warrant, dated as of June 12, 1996, issued
to The Hayden Group, a Nevada corporation ("Hayden"), representing the right to
purchase up to 350,000 shares of the Registrant's Common Stock (the "Hayden
Warrant"). Under the terms of the Hayden Warrant, Hayden has the right to
purchase up to 175,000 shares of Common Stock at a purchase price of One Dollar
($1.00) per share, and an additional 175,000 shares at a purchase price of One
Dollar and Fifty Cents ($1.50) per share.
(b) Both the number of shares which may be obtained upon exercise of the
Hayden Warrant and the exercise price per share are subject to adjustment in the
event that the outstanding shares of the Company's Common Stock are increased or
decreased through a stock split, stock dividend, stock consolidation, or
otherwise, without consideration to the Company. If such an event takes place,
an appropriate and proportionate adjustment must be made in the number and kind
of shares as to which the unexercised portion of the Hayden Warrant may be
exercised, and a corresponding adjustment must also be made to the exercise
price per share of Common Stock attributable to any unexercised portion of the
Hayden Warrant.
(c) The Hayden Warrant was issued in the form of one single non-
transferrable Warrant representing the right to purchase from the Registrant up
to 350,000 shares of Common Stock, as partial compensation for certain
consulting services provided and to be provided to the Registrant by Hayden.
None of the consulting services in question were rendered in connection with the
offer or sale of any securities in a capital-raising transaction. Although, as
described in paragraph 4.1, above, the shares of Common Stock underlying the
Hayden Warrant are being registered hereby, the Hayden Warrant itself is not.
-3-
<PAGE>
4.2.3 MPR WARRANTS. (a) The third and final Warrant referred to above
is reflected in that certain Stock Purchase Warrant, dated as of June 12, 1996,
issued to Meyers Pollock Robbins, Inc., a New York Corporation, ("MPR"),
representing the right to purchase up to 350,000 shares of the Registrant's
Common Stock (the "MPR Warrant"), at a price of $1.50 per share of Common Stock.
(b) Both the number of shares which may be obtained upon exercise of the
MPR Warrant and the exercise price per share are subject to adjustment in the
event that the outstanding shares of the Company's Common Stock are increased or
decreased through a stock split, stock dividend, stock consolidation, or
otherwise, without consideration to the Company. If such an event takes place,
an appropriate and proportionate adjustment must be made in the number and kind
of shares as to which the unexercised portion of the MPR Warrant may be
exercised, and a corresponding adjustment must also be made to the exercise
price per share of Common Stock attributable to any unexercised portion of the
MPR Warrant.
(c) The MPR Warrant was issued in the form of one single non-transferrable
Warrant representing the right to purchase from the Registrant up to 350,000
shares of Common Stock, as partial compensation for certain consulting services
provided and to be provided to the Registrant by MPR. None of the consulting
services in question were rendered in connection with the offer or sale of any
securities in a capital-raising transaction. Although, as described in
paragraph 4.1, above, the shares of Common Stock underlying the MPR Warrant are
being registered hereby, the MPR Warrant itself is not.
ITEM 5. Interests of Named Experts and Counsel
Not Applicable.
ITEM 6. Indemnification of Directors and Officers
Article V of the Registrant's Amended and Restated Articles of
Incorporation (the "Articles") provides that the liability of directors of the
Registrant for monetary damages is eliminated to the fullest extent permissible
under California law.
Article VI of the Registrant's Articles provides that the Registrant is
authorized to indemnify its directors and officers to the fullest extend
permissible under California law.
Article VI of the Registrant's Bylaws provides, with certain
qualifications, that the Registrant shall have the power to indemnify any
person, who is or is threatened to be made a party to proceeding by reason of
the fact that he or she is or was an officer, director, employee, or agent of
the Registrant, for all costs, expenses and other amounts actually and
reasonably incurred in connection with such proceeding. The foregoing
indemnification is conditioned upon a finding, by either (i) the uninterested
-4-
<PAGE>
members of the Registrant's Board of Directors, (ii) its shareholders, (iii)
independent legal counsel in a written opinion, or (iv) the court in which the
proceeding is or was pending, that the person seeking indemnification was acting
in good faith and in a manner reasonably believed to be in the best interests of
the Registrant, or in the case of a criminal proceeding that he or she had no
reasonable cause to believe that his or her conduct was unlawful.
As authorized by the foregoing Article and Bylaw provisions, the Registrant
and each of its Directors and executive officers individually have entered into
Indemnification Agreements whereby the Registrant agreed to indemnify such
individuals against any claims or expenses they may incur as a result of serving
the Registrant in those or other capacities, provided that the person seeking
indemnification was acting in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the Registrant, or in the case of
a criminal proceeding that he or she had no reasonable cause to believe that his
or her conduct was unlawful. Additionally, the Registrant has entered into
separate Indemnification Agreements, with the Registrant's principal corporate
shareholder and the corporation which holds all of that company's stock, which
provide similar indemnification against claims and expenses arising out of those
relationships and certain consulting arrangements between those entities and the
Registrant.
ITEM 7. Exemption from Registration Claimed
At the present time, the GSV Warrant, the Hayden Warrant, and the MPR
Warrant (including additional shares which may be issued pursuant to the
Warrants' anti-dilution provisions) have been granted and are outstanding, but
none of such Warrants have been exercised, in whole or in part. Because GSV,
Hayden, and MPR each (a) are knowledgeable and sophisticated in financial and
securities matters, (b) had access to comprehensive information about the
Registrant, and to the Registrant's management, at the time their respective
Consulting Agreements were entered into and the respective Warrants were issued,
and (c) negotiated the terms and conditions of their respective Warrants
directly with the Registrant in private transactions, the Registrant believes
that the Warrants were, and the underlying Common Stock will be, issued in
transactions which are exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act") pursuant to the exemption
provided by Section 4(2) of the Act.
ITEM 8. Exhibits.
4.1 Consulting Agreement, dated June 12, 1996, between the Registrant
and Growth Science Ventures, Inc.
4.2 Stock Purchase Warrant, dated June 12, 1996, issued by the
Registrant to Growth Science Ventures, Inc.
-5-
<PAGE>
4.3 Consulting Agreement, dated June 12, 1996, between the Registrant
and The Hayden Group.
4.4 Stock Purchase Warrant, dated June 12, 1996, issued by the
Registrant to The Hayden Group.
4.5 Consulting Agreement, dated June 12, 1996, between the Registrant
and Meyers Pollock Robbins, Inc.
4.6 Stock Purchase Warrant, dated June 12, 1996, issued by the
Registrant to Meyers Pollock Robbins, Inc.
5. Opinion of Rosenblum, Parish & Isaacs, PC
24.1 Consent of Grant Thornton, LLP
Independent Public Accountant
24.2 Consent of Rosenblum, Parish & Isaacs, PC (see Exhibit 5 hereto).
ITEM 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers are being made, a post-
effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at
-6-
<PAGE>
that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Act of 1934 that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred by a director, officer, or controlling person of
the Registrant in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-7-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sacramento, State of California, on June 27, 1996.
JAVA CENTRALE, INC.
By: /s/ GARY C. NELSON
---------------------
Gary C. Nelson
President
(Principal Executive Officer)
By: /s/ STEVEN J. ORLANDO
--------------------------
Steven J. Orlando
Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Shannon, Gary C. Nelson, and
Steven J. Orlando, and each of them, as his or her true and lawful agent and
attorney-in-fact, with full power of substitution, for him and in his name,
place, and stead, in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement on Form S-8, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
agents and attorneys-in-fact, or either of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said agents and
attorneys-in-fact, and either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
-8-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ KEVIN R. BAKER Director June 27, 1996
- ------------------------
Kevin R. Baker
/s/ BRADLEY B. LANDIN Director June 27, 1996
- ------------------------
Bradley B. Landin
/s/ GARY C. NELSON Director and June 27, 1996
- ------------------------ President
Gary C. Nelson
/s/ RICHARD D. SHANNON Director June 27, 1996
- ------------------------
Richard D. Shannon
-9-
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- -----------
4.1 Consulting Agreement, dated June 12, 1996, between
the Registrant and Growth Science Ventures, Inc.
4.2 Stock Purchase Warrant, dated June 12, 1996, issued
by the Registrant to Growth Science Ventures, Inc.
4.3 Consulting Agreement, dated June 12, 1996, between
the Registrant and The Hayden Group
4.4 Stock Purchase Warrant, dated June 12, 1996, issued
by the Registrant to The Hayden Group
4.5 Consulting Agreement, dated June 12, 1996, between
the Registrant and Meyers Pollock Robbins, Inc.
4.6 Stock Purchase Warrant, dated June 12, 1996, issued
by the Registrant to Meyers Pollock Robbins, Inc.
5. Opinion of Rosenblum, Parish & Isaacs, PC
24.1 Consent of Grant Thornton, LLP Independent
Public Accountant
24.2 Consent of Rosenblum, Parish & Isaacs, PC (see Exhibit 5 hereto).
-10-
<PAGE>
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is effective as of the 12th day
of June, 1996, by and between JAVA CENTRALE, INC., a California corporation,
(the "Company") and GROWTH SCIENCE VENTURES, INC., a Nevada Corporation, (the
"Consultant").
R E C I T A L S
A. The Company is a publicly-held company.
B. The Consultant is knowledgeable and experienced in the business of
providing financial and public relations services to publicly traded companies.
C. The Company desires to retain the Consultant to provide specified
services for the Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is acknowledged by all
parties hereto, the parties do hereby agree as follows:
1. DUTIES OF CONSULTANT.
(a) The Company hereby engages Consultant to provide financial and
public relations services. Such services shall include, in general, advice to
and consultation with the Company's management concerning: general and financial
public relations, corporate finance, overall marketing policy, corporate
development, investor profile information, methods of expanding investor
support, and increasing investor awareness of the Company and its strategy and
products.
(b) The parties mutually recognize and agree that Consultant, in
rendering advice or recommendations to the Company, is not and will not be
responsible for any management decisions on behalf of the Company and that it is
not authorized or empowered to commit the Company to any recommendation or
course of action. No document, material, or information regarding the Company
or its business shall be released, or publicly or privately disseminated, by
Consultant or its affiliates without the prior approval of the Company.
-1-
<PAGE>
2. TERM OF THE AGREEMENT.
(a) This Agreement shall continue in effect until the close of
business on June 12, 1997, unless terminated earlier as provided below.
(b) Notwithstanding the provisions of the foregoing paragraph, either
party to this Agreement may in its sole discretion terminate it, upon sixty (60)
days' written notice, at any time.
3. COMPENSATION.
(a) As compensation for the services to be provided by Consultant to
the Company pursuant to this Agreement, the Company hereby grants to Consultant
warrants (the "Warrants") to purchase a total of Five Hundred Thousand (500,000)
fully paid and nonassessable shares of its common stock (the "Warrant Shares")
at the following purchase prices, subject to the terms of this Agreement and on
the other terms specified herein and in the Warrant Agreement attached hereto as
Exhibit A:
(i) Two Hundred Fifty Thousand (250,000) Warrant Shares, at Twenty-
Five Cents ($0.25) per share; and
(ii) Two Hundred Fifty Thousand (250,000) Warrant Shares, at One
Dollar and Fifty Cents ($1.50) per share.
(b) The Company shall reimburse Consultant for all of its expenses,
up to a total of $1,000 per month, which Consultant may incur in the performance
of its duties under this Agreement, within fifteen (15) days after receipt of
written request therefor from the Consultant. Consultant shall, however, be
responsible for, and shall pay without reimbursement, any and all expenses
incurred by Consultant, or others at its direction, in performing the services
to be performed by Consultant or others under its direction pursuant to this
Agreement.
(c) The issuance and delivery of the Warrant Shares is subject to the
registration of the Warrant Shares pursuant to the Securities Act of 1933. It
is anticipated that the Warrant Shares will be registered with the Securities
and Exchange Commission as soon as practicable following the execution and
delivery of this Agreement.
4. SERVICES NOT EXCLUSIVE. Consultant shall devote such of its time and
effort as is necessary to the discharge of its duties hereunder. The Company
acknowledges that Consultant is engaged in other business activities and that it
will continue such activities during the term of this Agreement. Consultant
shall not be restricted from engaging in other business activities during the
-2-
<PAGE>
term of this Agreement, except that during such term Consultant shall not,
without the Company's written consent, represent any other public or non-public
company which is in direct competition with the Company. Similarly, the Company
shall not in any way be restricted from engaging such other consultants,
employees, or advisors, for whatever purposes, as it may deem appropriate during
the term hereof.
5. CONFIDENTIALITY; INSIDER TRADING.
(a) Consultant acknowledges that from time to time it or its
employees, officers, directors, and agents may have access to confidential
documents and information regarding the Company and its business. Consultant
represents and warrants that (i) all such information and documents belong to
the Company, are proprietary, and contain trade secrets and other confidential
information, (ii) neither it nor such employees, officers, directors, or
affiliates will, during or subsequent to the term of this Agreement, divulge,
furnish, or make accessible to any person (other than with the prior written
permission of the Company) any such documents, knowledge, or information or
plans of the Company with respect to the Company or its business, and (iii)
Consultant hereby assigns and agrees to assign to the Company all rights in such
information, knowledge, and/or documents which it may receive during the term
hereof.
(b) Consultant shall not purchase or sell any shares of the Company's
common stock at any time during which Consultant is in possession of material
nonpublic information regarding the Company or its business. For the purposes
of this Section 5, any such nonpublic information shall be deemed to be
nonpublic prior to its disclosure to the public and for a period of 72 hours
after any such disclosure.
6. REPRESENTATIONS OF CONSULTANT.
Consultant represents and warrants to the Company as follows:
(a) Consultant has received from the Company, and has carefully
reviewed, (i) the Company's annual report on Form 10-K for the fiscal year ended
March 31, 1995, (ii) the Company's report on Form 10-Q for the quarter ended
December 31, 1996 (such reports being collectively referred to herein as the
"Reports"), and (iii) such other information and documents pertaining to the
Company as it has deemed necessary in order to be able to properly evaluate the
Company's prospects and financial condition.
(b) Consultant has had a reasonable opportunity to ask questions of
and receive answers from the Company concerning the
-3-
<PAGE>
Company and its business and financial affairs, and all such questions, if any,
have been answered to its full satisfaction.
(c) Consultant has such knowledge and expertise in financial and
business matters that it is capable of evaluating the merits and risks involved
in an investment in the Warrant Shares.
(d) Except as set forth in this Agreement, no representations or
warranties have been made to Consultant by the Company or any agent, employee or
affiliate of the Company; and in entering into this transaction, Consultant is
relying upon the results of its own independent investigation.
(e) Consultant is aware that because of the Company's financial
position and other factors, the acquisition of the shares to be paid to
Consultant as compensation hereunder involves a high degree of risk, including
the risk that Consultant may lose its entire investment in the shares of common
stock.
(f) The Warrant Shares are being acquired by Consultant for its own
account and not on behalf of any other person, and are being acquired for
investment purposes and not for distribution.
(g) The services to be performed pursuant to this Agreement are not
in connection with or dependent upon the offer or sale of any of the Company's
securities, whether in a capital raising transaction or otherwise.
(h) Consultant shall not transfer or sell the Warrant Shares without
registration under the Act and any applicable state securities laws, unless
exemptions from such registration requirements are available.
(i) Neither Consultant nor any of its employees or affiliates is an
officer, director, employee, affiliate, or agent of the Company.
7. REPRESENTATIONS OF THE COMPANY.
The Company represents and warrants to Consultant as follows:
(a) The Company will file a Registration Statement on Form S-8 (the
"Registration Statement") to register the Warrant Shares as soon as practicable
after the date of this Agreement.
(b) The Company will comply with applicable state securities laws and
regulations with respect to the registration or qualification of the Warrant
Shares.
-4-
<PAGE>
(c) Upon issuance in accordance with the terms of this Agreement, the
Warrant Shares will be duly authorized, validly issued, and unassessable shares
of the Company's common stock.
(d) All necessary corporate action has been or will be taken by the
Company in order to authorize the execution and performance of this Agreement by
the Company.
8. ARBITRATION. Any Dispute arising between the Company and Consultant
arising out of or related to this Agreement or breach thereof, shall be settled
by arbitration in accordance with the rules of the American Arbitration
Association, which shall be conducted in the State of California, County of
Sacramento. Any award made by such arbitrators shall be binding and conclusive
for all purposes thereof, may include injunctive relief, as well as orders for
specific performance, and may be entered as a final judgment in any court of
competent jurisdiction. No arbitration arising out of or relating to this
Agreement shall include, by consolidation or joinder or in any other manner,
parties other than the Company, Consultant, and other persons substantially
involved in common questions of fact or law whose presence is required if
complete relief is to be afforded in such arbitration. The cost and expenses of
such arbitration shall be borne in accordance with the determination of the
arbitrators and may include reasonable attorney's fees. Each party hereby
further agrees that service of process may be made upon it by registered or
certified mail or personal service at the address provided for herein.
9. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California, without regard to the choice of law provisions thereof.
The parties agree that any suit or proceeding in connection with, arising out
of, or relating to this Agreement shall be instituted only in a court (whether
federal or California) located in Sacramento County, California, and the
parties, for the purpose of any such suit or proceeding, irrevocably consent and
submit to the personal and subject matter jurisdiction and venue of any such
court in any such suit or proceeding.
(b) AMENDMENTS AND WAIVERS. This Agreement may be amended or
modified only with the mutual written consent of the each of the parties
hereto. Notwithstanding the foregoing, any covenant, condition, or term
contained in this Agreement may be waived, or a breach thereof may be excused
as to that party individually, by a writing signed by the party or parties
directly entitled to the benefits thereof or remedies therefor.
-5-
<PAGE>
(c) SURVIVAL OF WARRANTIES. The representations and covenants of the
parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement for a period of two years from the date
hereof, and shall in no way be affected by any investigation on the subject
matter thereof made by or on behalf of the parties prior to the date hereof or
during the said two-year period.
(d) ASSIGNS; NO THIRD-PARTY BENEFICIARIES. The terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and upon their respective permitted assigns.
Notwithstanding anything to the contrary herein, no party's rights or
obligations under this Agreement may be assigned without the prior written
consent of the other party to this Agreement, and any such attempted
assignment without such consent shall be void. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
(e) PARTIAL VALIDITY; ENFORCEMENT. If the application of any
provision or provisions of this Agreement to any particular facts or
circumstances shall be held to be invalid or unenforceable by any court of
competent jurisdiction, then (i) the validity and enforceability of such
provision or provisions as applied to any other particular facts or
circumstances and the validity of the other provisions of this Agreement shall
not in any way be affected or impaired thereby, and (ii) such provision or
provisions shall be reformed, without further action by the parties hereto, to
and only to the extent necessary to make the same valid and enforceable when
applied to such particular facts and circumstances.
(f) EXPENSES. Each party hereto shall bear its own legal expenses,
attorney's fees, and other costs incurred in connection herewith.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all agreements between the parties, written or oral, regarding the
same.
(h) COUNTERPARTS; EXHIBITS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be addressed to the party to be notified at
the address indicated for such party on the signature page hereof, or at such
other address as such party
-6-
<PAGE>
may designate by ten (10) days' advance written notice to the other parties.
Such notice shall be deemed effectively given upon (i) personal delivery to the
party to be notified, (ii) three (3) days after it has been deposited with the
United States Post Office, by registered or certified mail, return receipt
requested, postage prepaid, (iii) the next business day after it has been
deposited for next-day delivery with an overnight courier such as Federal
Express, or (iv) when delivered by facsimile or electronic transmission, upon
sender's receipt of a confirmation of receipt of facsimile or electronic
transmission.
(j) TITLES AND SUBTITLES. The titles and subtitles used in this
Termination Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
(k) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
(l) BINDING EFFECT. The provisions of this Agreement shall be
binding upon the parties, their successors and assigns.
AUTHORIZED SIGNATURES
In order to bind the parties to this Agreement, their duly authorized
representatives have signed their names below:
THE COMPANY: JAVA CENTRALE, INC.
By: /s/ GARY C. NELSON
--------------------------
Gary C. Nelson
Its President
ADDRESS: 1610 Arden Way, Suite 145
Sacramento, CA 95815-1240
Facsimile No.: (916) 568-1240
CONSULTANT: GROWTH SCIENCE VENTURES, INC.
By: /s/ JEANNE NIGH
--------------------------
Jeanne Nigh
Its: President
ADDRESS: 21345 Las Pilas Road
Woodland Hills, CA 91864
Facsimile No.: (818) 346-8411
-7-
<PAGE>
Exhibit 4.2
STOCK PURCHASE WARRANT
FIVE HUNDRED THOUSAND (500,000) WARRANTS
TO PURCHASE COMMON STOCK OF
JAVA CENTRALE, INC.
THIS WARRANT IS TO CERTIFY THAT JAVA CENTRALE, INC., a California
corporation (the "Company") has, effective as of June 12, 1996, authorized the
issuance to GROWTH SCIENCE VENTURES, INC., a Nevada Corporation, ("GSV"), of
rights to purchase (the "Warrants") an aggregate of Five Hundred Thousand
(500,000) fully-paid and non-assessable shares of the no par value Common Stock
of the Company (the "Warrant Shares"), on the basis of one Share for each
Warrant, exercisable at any time prior to 5:00 PM, California time, on June 10,
1997 (the "Expiration Time"), at the principal office of the Company, on payment
of the price per Share specified in Section 2 of this Warrant and subject to the
terms and conditions governing this Warrant hereinafter expressed.
THIS IS TO CERTIFY ALSO THAT, for value received, the Company agrees,
subject to the terms and conditions hereinafter expressed, to sell and deliver
to GSV 500,000 fully-paid and nonassessable Warrants.
This Warrant is nontransferable, shall be subject to all of the terms
hereof as set forth below, and shall become void, and terminate and lapse, at
the Expiration Time, after which this Warrant shall be of no further force nor
effect.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the undersigned, duly authorized thereunto.
DATED as of June 12, 1996.
JAVA CENTRALE, INC.
By: /s/GARY C. NELSON
-----------------
Gary C. Nelson
Its President
<PAGE>
WARRANTS TO PURCHASE COMMON STOCK
The terms and conditions with respect to the holding and exercise of these
Stock Purchase Warrants are as follows.
1. NUMBER OF SHARES ACQUIRABLE UPON EXERCISE; CERTAIN
ADJUSTMENTS.
(a) GSV shall be initially entitled to receive, upon exercise hereof,
up to Five Hundred Thousand (500,000) shares of the Company's Common Stock,
subject, however, to adjustment as provided below.
(b) If, following the date hereof and prior to the Expiration Time
(as defined below), the outstanding shares of the Company's Common Stock shall
be increased or decreased through a stock split, stock dividend, stock
consolidation, or otherwise, without consideration to the Company, an
appropriate and proportionate adjustment shall be made in the number and kind of
shares as to which the Warrants may be exercised. By way of example only, if
the Company should undergo a two-for-one stock split of its outstanding shares
of Common Stock, the number of shares for which the Warrants may be exercised
would thereupon increase to 1,000,000 shares.
(c) Any increase or decrease in the number of shares obtainable
through the exercise of the Warrants shall become effective immediately
following the effective time of the stock split or consolidation causing such
increase or decrease, or in the case of an increase required by a stock
dividend, shall become effective as of the payment or distribution date of such
dividend.
(d) No fractional shares of stock shall be issued or made available
under this Warrant on account of any such adjustment, and fractional share
interests shall be disregarded.
2. EXERCISE PRICE; ADJUSTMENT IN CERTAIN EVENTS.
(a) The Warrants shall be initially exercisable for the following
purchase prices per Share, subject to the adjustments set forth below (the
"Exercise Prices"). The Exercise Prices shall remain unchanged until the
occurrence of one of the events described in Section 1(b), above.
(b) The Exercise Price for the Warrant Shares shall be as follows:
(i) GSV shall have the right to purchase up to Two Hundred Fifty
Thousand (250,000) Warrant Shares at Twenty-Five Cents ($0.25) per share;
and
-2-
<PAGE>
(ii) GSV shall have the right to purchase up to an additional Two
Hundred Fifty Thousand (250,000) Warrant Shares, at One Dollar and Fifty
Cents ($1.50) per share.
(c) Subject to all of the other terms of this Warrant, GSV may
purchase any or all of the Warrant Shares at any time during the term of this
Warrant, and it need not purchase any number of Warrant Shares at any given
Exercise Price before purchasing any of the other Warrant Shares at that or any
other Exercise Price.
(d) In the event of a change in the number of shares of Common Stock
which may be caused by any event described in Section 1(b), above, a
corresponding adjustment changing the exercise price per share of Common Stock
attributable to any unexercised Warrants shall likewise be made. By way of
example, only, if the Company should undergo a two-for-one stock split of its
outstanding shares of Common Stock as described in Section 1(b), above, then in
addition to the change in number of shares for which the Warrants may be
exercised as described in Section 1(b), the Exercise Prices for each share of
Common Stock for which a Warrant may thereafter be exercised would be reduced as
follows: (i) the per share Exercise Price for the Warrant Shares described in
Section 2(b)(i), above would be reduced from Twenty-Five Cents ($0.25) to Twelve
and One-Half Cents ($0.125); and (ii) the per share Exercise Price for the
Warrants described in Section 2(b)(ii), above would be reduced from One Dollar
and Fifty Cents ($1.50) to Seventy-Five Cents ($0.75).
3. METHOD OF EXERCISE. GSV may exercise its right to purchase Warrant
Shares pursuant to this Warrant at any time prior to the Expiration Time, by (a)
completing in the manner indicated, and executing, the attached Subscription
Form for that number of Warrant Shares which it is entitled, and desires, to
purchase; (b) surrendering the Warrant to the Company at its principal place of
business in Sacramento, California; and (c) paying the appropriate purchase
price for the Warrant Shares (rounded to the nearest whole cent), by cash, money
order, bank draft, or certified check, payable to the Company at its principal
place of business in Sacramento, California. Upon such surrender and payment,
the Company will issue to GSV the number of Warrant Shares so subscribed for.
4. EFFECT OF EXERCISE. Upon surrender of this Warrant and due payment
of the exercise price, the Company will issue to GSV the number of shares of
Common Stock subscribed for, and GSV will be a shareholder of the Company in
respect of such Common Stock as of the date on which the shares representing
such Common Stock are issued by the Company's Transfer Agent and Registrar.
-3-
<PAGE>
5. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. No person or entity shall
be considered to be a shareholder of the Company for any purpose until the
exercise of the Warrant as provided herein and the due and formal issuance of
Warrant Shares by the Company's Transfer Agent and Registrar thereupon.
6. NO RIGHTS AFTER THE EXPIRATION TIME. Nothing contained in this
Warrant, or in any instrument evidencing the Warrant, shall confer on any person
or entity any right to subscribe for or purchase, after the Expiration Time, any
security of or issued by the Company. From and after the Expiration Time, this
Warrant and all rights hereunder shall be valueless, unexercisable, void, and of
no further force or effect.
7. NONTRANSFERABILITY. This Warrant shall not be transferrable, and any
attempt to sell, assign, transfer, hypothecate, or otherwise convey or encumber
any interest herein or therein shall be void. The Company shall have no
obligation to recognize any such sale, assignment, transfer, hypothecation, or
other conveyance or encumbrance, to reflect such transaction on the official
records of the Company, or to issue Warrants or shares of its Common Stock to
any party in violation of this provision.
8. SUBDIVISION. This Warrant may be divided and subdivided into two or
more certificates, evidencing the total number of Warrants provided herein, upon
written demand therefor delivered to the Company. This Warrant may be exercised
for all or any part of the Warrant Shares, and in such event the Company shall
issue a new Warrant Certificate, evidencing the balance of the Warrant Shares
not previously subscribed for. Notwithstanding the foregoing sentences,
however, no Warrant Certificate shall be issued, and no exercise of a Warrant
shall be permitted, involving any fraction of one Share.
9. NO BREACH OR TERMINATION OF CONSULTING AGREEMENT. This Warrant is
issued by the Company pursuant to, and in accordance with the terms of, that
certain Consulting Agreement, dated as of June 12, 1996, between GSV and the
Company. In the event that GSV shall breach any of the terms of the said
Consulting Agreement, or if any of the representations, warranties, or covenants
made by GSV shall be or become untrue, or shall be violated by GSV in any
material respect, or if the Consulting Agreement shall be terminated by GSV for
any reason, then this Warrant shall become immediately void, and all of GSV's
rights hereunder shall automatically be terminated, without notice or any
further action on the part of the Company.
-4-
<PAGE>
10. MISCELLANEOUS.
(a) This Warrant shall be governed by and construed in accordance
with the internal laws of the State of California, without reference to the
choice of laws provisions thereof.
(b) The captions set forth in this Warrant are for convenience only,
and shall not be used in the construction hereof.
(c) If this Warrant, or any paragraph, sentence, term, or provision
hereof, is invalidated on any ground by any court of competent jurisdiction, the
remainder hereof shall, notwithstanding such invalidation, remain in full force
in effect, and each other provision of this Warrant shall thereafter be
construed and enforced in such a manner as to give the fullest possible effect
to the intention and purposes expressed herein.
-5-
<PAGE>
JAVA CENTRALE, INC.
WARRANT SUBSCRIPTION FORM
Stock Purchase Warrants dated as of June 12, 1996
TO: Java Centrale, Inc.
ATTENTION: Chief Financial Officer
1610 Arden Way, Suite 145
Sacramento, CA 95815
RE: Exercise of Stock Purchase Warrants
Pursuant to the terms of that certain Stock Purchase Warrant, dated as of
June 12, 1996 (the "Warrant"), which Warrant is attached to this Subscription
Form, the undersigned hereby subscribes for _____ whole shares of the Company's
no par value Common Stock, at a price of $______ per share or at such other
price as may be applicable in accordance with the terms of the Warrant.
TOTAL SUBSCRIPTION PRICE: $
----------------
The undersigned hereby directs and requires that the shares of Common Stock
being subscribed for hereby be issued and delivered as follows:
Full Name of Shareholder: ________________________________
Full Address: _______________________________________________
_______________________________________________
_______________________________________________
Number of Shares for Which Subscribed: ___________________________
DATED: _____________
GROWTH SCIENCE VENTURES, INC.
By:__________________________
__________________________
Its_______________________
NOTE: This Subscription Form must be signed and accompanied by payment to
Java Centrale, Inc., in full, of the appropriate subscription price, in cash or
by money order, bank draft, or certified check, payable to the Company at its
principal place of business in Sacramento, California, and must be received by
the Company prior to 5:00 PM, California time, on June 12, 1997 (the
"Expiration Time"), after which time all rights represented by the attached
Stock Purchase Warrant will expire.
-6-
<PAGE>
JAVA CENTRALE, INC. ACCEPTS NO RESPONSIBILITY FOR THE DELIVERY TO IT OF
THIS SUBSCRIPTION FORM OR THE ACCOMPANYING STOCK PURCHASE AGREEMENT. SUFFICIENT
TIME SHOULD BE ALLOWED FOR THE DELIVERY OF THESE DOCUMENTS PRIOR TO THE
EXPIRATION TIME.
Upon surrender of this Subscription Form and the Stock Purchase Warrant,
and payment of the subscription price as provided therein, the Company will
issue the number of shares of Common Stock subscribed for, and such persons or
entities will thereupon become shareholders of the Company. If a lesser number
of shares is subscribed for than the number of shares described in the Stock
Purchase Warrant, the Company shall issue a further Stock Purchase Warrant in
respect of the unsubscribed shares of Common Stock not subscribed for hereby.
-7-
<PAGE>
Exhibit 4.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is effective as of the 12th day
of June, 1996, by and between JAVA CENTRALE, INC., a California corporation,
(the "Company") and THE HAYDEN GROUP, a Nevada corporation, (the "Consultant").
R E C I T A L S
A. The Company is a publicly-held company.
B. The Consultant is knowledgeable and experienced in the business of
providing financial and public relations services to publicly traded companies.
C. The Company desires to retain the Consultant to provide specified
services for the Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is acknowledged by all
parties hereto, the parties do hereby agree as follows:
1. DUTIES OF CONSULTANT.
(a) The Company hereby engages Consultant to provide public relations
services. Such services shall include, in general, advice to and consultation
with the Company's management concerning general and financial public relations,
overall marketing policy, methods of expanding investor support, and increasing
investor awareness of the Company and its strategy and products.
(b) The parties mutually recognize and agree that Consultant, in
rendering advice or recommendations to the Company, is not and will not be
responsible for any management decisions on behalf of the Company and that it is
not authorized or empowered to commit the Company to any recommendation or
course of action. No document, material, or information regarding the Company
or its business shall be released, or publicly or privately disseminated, by
Consultant or its affiliates without the prior approval of the Company.
-1-
<PAGE>
2. TERM OF THE AGREEMENT.
(a) This Agreement shall continue in effect until the close of
business on June 12, 1997, unless terminated earlier as provided below.
(b) Notwithstanding the provisions of the foregoing paragraph, either
party to this Agreement may in its sole discretion terminate it, upon sixty (60)
days' written notice, at any time.
3. COMPENSATION.
(a) As compensation for the services to be provided by Consultant to
the Company pursuant to this Agreement, the Company hereby grants to Consultant
warrants (the "Warrants") to purchase a total of Three Hundred Fifty Thousand
(350,000) fully paid and nonassessable shares of its common stock (the "Warrant
Shares") at the following purchase prices, subject to the terms of this
Agreement and on the other terms specified herein and in the Warrant Agreement
attached hereto as Exhibit A:
(i) One Hundred Seventy-Five Thousand (175,000) Warrant Shares, at One
Dollar ($1.00) per share; and
(ii) One Hundred Seventy-Five Thousand (175,000) Warrant Shares, at
One Dollar Fifty Cents ($1.50) per share.
(b) It is expressly agreed that Consultant shall be responsible for
and shall pay any and all expenses incurred by Consultant or others in
performing the services to be performed by it or under its direction pursuant to
this Agreement. It is understood that such expenses to be borne by Consultant
shall include, but not be limited to, postage and other expenses of mailings,
agency fees and media fees incurred in connection with the placement of any
publication, advertisement or program, and travel and communications expenses.
(c) The issuance and delivery of the Warrant Shares is subject to the
registration of the Warrant Shares pursuant to the Securities Act of 1933. It
is anticipated that the Warrant Shares will be registered with the Securities
and Exchange Commission as soon as practicable following the execution and
delivery of this Agreement.
4. SERVICES NOT EXCLUSIVE. Consultant shall devote such of its time and
effort as is necessary to the discharge of its duties hereunder. The Company
acknowledges that Consultant is engaged in other business activities and that it
will continue such activities during the term of this Agreement. Consultant
shall not be restricted from engaging in other business activities during the
-2-
<PAGE>
term of this Agreement, except that during such term Consultant shall not,
without the Company's written consent, represent any other public or non-public
company which is in direct competition with the Company. Similarly, the Company
shall not in any way be restricted from engaging such other consultants,
employees, or advisors, for whatever purposes, as it may deem appropriate during
the term hereof.
5. CONFIDENTIALITY; INSIDER TRADING.
(a) Consultant acknowledges that from time to time it or its
employees, officers, directors, and agents may have access to confidential
documents and information regarding the Company and its business. Consultant
represents and warrants that (i) all such information and documents belong to
the Company, are proprietary, and contain trade secrets and other confidential
information, (ii) neither it nor such employees, officers, directors, or
affiliates will, during or subsequent to the term of this Agreement, divulge,
furnish, or make accessible to any person (other than with the prior written
permission of the Company) any such documents, knowledge, or information or
plans of the Company with respect to the Company or its business, and (iii)
Consultant hereby assigns and agrees to assign to the Company all rights in such
information, knowledge, and/or documents which it may receive during the term
hereof.
(b) Consultant shall not purchase or sell any shares of the Company's
common stock at any time during which Consultant is in possession of material
nonpublic information regarding the Company or its business. For the purposes
of this Section 5, any such nonpublic information shall be deemed to be
nonpublic prior to its disclosure to the public and for a period of 72 hours
after any such disclosure.
6. REPRESENTATIONS OF CONSULTANT.
Consultant represents and warrants to the Company as follows:
(a) Consultant has received from the Company, and has carefully
reviewed, (i) the Company's annual report on Form 10-K for the fiscal year ended
March 31, 1995, (ii) the Company's report on Form 10-Q for the quarter ended
December 31, 1996 (such reports being collectively referred to herein as the
"Reports"), and (iii) such other information and documents pertaining to the
Company as it has deemed necessary in order to be able to properly evaluate the
Company's prospects and financial condition.
(b) Consultant has had a reasonable opportunity to ask questions of
and receive answers from the Company concerning the
-3-
<PAGE>
Company and its business and financial affairs, and all such questions, if any,
have been answered to its full satisfaction.
(c) Consultant has such knowledge and expertise in financial and
business matters that it is capable of evaluating the merits and risks involved
in an investment in the Warrant Shares.
(d) Except as set forth in this Agreement, no representations or
warranties have been made to Consultant by the Company or any agent, employee or
affiliate of the Company; and in entering into this transaction, Consultant is
relying upon the results of its own independent investigation.
(e) Consultant is aware that because of the Company's financial
position and other factors, the acquisition of the shares to be paid to
Consultant as compensation hereunder involves a high degree of risk, including
the risk that Consultant may lose its entire investment in the shares of common
stock.
(f) The Warrant Shares are being acquired by Consultant for its own
account and not on behalf of any other person, and are being acquired for
investment purposes and not for distribution.
(g) The services to be performed pursuant to this Agreement are not
in connection with or dependent upon the offer or sale of any of the Company's
securities, whether in a capital raising transaction or otherwise.
(h) Consultant shall not transfer or sell the Warrant Shares without
registration under the Act and any applicable state securities laws, unless
exemptions from such registration requirements are available.
(i) Neither Consultant nor any of its employees or affiliates is an
officer, director, employee, affiliate, or agent of the Company.
7. REPRESENTATIONS OF THE COMPANY.
The Company represents and warrants to Consultant as follows:
(a) The Company will file a Registration Statement on Form S-8 (the
"Registration Statement") to register the Warrant Shares as soon as practicable
after the date of this Agreement.
(b) The Company will comply with applicable state securities laws and
regulations with respect to the registration or qualification of the Warrant
Shares.
-4-
<PAGE>
(c) Upon issuance in accordance with the terms of this Agreement, the
Warrant Shares will be duly authorized, validly issued, and unassessable shares
of the Company's common stock.
(d) All necessary corporate action has been or will be taken by the
Company in order to authorize the execution and performance of this Agreement by
the Company.
8. ARBITRATION. Any Dispute arising between the Company and Consultant
arising out of or related to this Agreement or breach thereof, shall be settled
by arbitration in accordance with the rules of the American Arbitration
Association, which shall be conducted in the State of California, County of
Sacramento. Any award made by such arbitrators shall be binding and conclusive
for all purposes thereof, may include injunctive relief, as well as orders for
specific performance, and may be entered as a final judgment in any court of
competent jurisdiction. No arbitration arising out of or relating to this
Agreement shall include, by consolidation or joinder or in any other manner,
parties other than the Company, Consultant, and other persons substantially
involved in common questions of fact or law whose presence is required if
complete relief is to be afforded in such arbitration. The cost and expenses of
such arbitration shall be borne in accordance with the determination of the
arbitrators and may include reasonable attorney's fees. Each party hereby
further agrees that service of process may be made upon it by registered or
certified mail or personal service at the address provided for herein.
9. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California, without regard to the choice of law provisions thereof.
The parties agree that any suit or proceeding in connection with, arising out
of, or relating to this Agreement shall be instituted only in a court (whether
federal or California) located in Sacramento County, California, and the
parties, for the purpose of any such suit or proceeding, irrevocably consent and
submit to the personal and subject matter jurisdiction and venue of any such
court in any such suit or proceeding.
(b) AMENDMENTS AND WAIVERS. This Agreement may be amended or
modified only with the mutual written consent of the each of the parties hereto.
Notwithstanding the foregoing, any covenant, condition, or term contained in
this Agreement may be waived, or a breach thereof may be excused as to that
party individually, by a writing signed by the party or parties directly
entitled to the benefits thereof or remedies therefor.
-5-
<PAGE>
(c) SURVIVAL OF WARRANTIES. The representations and covenants of the
parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement for a period of two years from the date
hereof, and shall in no way be affected by any investigation on the subject
matter thereof made by or on behalf of the parties prior to the date hereof or
during the said two-year period.
(d) ASSIGNS; NO THIRD-PARTY BENEFICIARIES. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and upon their respective permitted assigns. Notwithstanding anything
to the contrary herein, no party's rights or obligations under this Agreement
may be assigned without the prior written consent of the other party to this
Agreement, and any such attempted assignment without such consent shall be void.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
(e) PARTIAL VALIDITY; ENFORCEMENT. If the application of any
provision or provisions of this Agreement to any particular facts or
circumstances shall be held to be invalid or unenforceable by any court of
competent jurisdiction, then (i) the validity and enforceability of such
provision or provisions as applied to any other particular facts or
circumstances and the validity of the other provisions of this Agreement shall
not in any way be affected or impaired thereby, and (ii) such provision or
provisions shall be reformed, without further action by the parties hereto, to
and only to the extent necessary to make the same valid and enforceable when
applied to such particular facts and circumstances.
(f) EXPENSES. Each party hereto shall bear its own legal expenses,
attorney's fees, and other costs incurred in connection herewith.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all agreements between the parties, written or oral, regarding the
same.
(h) COUNTERPARTS; EXHIBITS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be addressed to the party to be notified at
the address indicated for such party on the signature page hereof, or at such
other address as such party
-6-
<PAGE>
may designate by ten (10) days' advance written notice to the other parties.
Such notice shall be deemed effectively given upon (i) personal delivery to the
party to be notified, (ii) three (3) days after it has been deposited with the
United States Post Office, by registered or certified mail, return receipt
requested, postage prepaid, (iii) the next business day after it has been
deposited for next-day delivery with an overnight courier such as Federal
Express, or (iv) when delivered by facsimile or electronic transmission, upon
sender's receipt of a confirmation of receipt of facsimile or electronic
transmission.
(j) TITLES AND SUBTITLES. The titles and subtitles used in this
Termination Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
(k) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
(l) BINDING EFFECT. The provisions of this Agreement shall be
binding upon the parties, their successors and assigns.
AUTHORIZED SIGNATURES
In order to bind the parties to this Agreement, their duly authorized
representatives have signed their names below:
THE COMPANY: JAVA CENTRALE, INC.
By: /s/ GARY C. NELSON
--------------------------
Gary C. Nelson
Its President
ADDRESS: 1610 Arden Way, Suite 145
Sacramento, CA 95815-1240
Facsimile No.: (916) 568-1240
CONSULTANT: THE HAYDEN GROUP
By: /s/ ROBERT GARTZMAN
--------------------------
Robert Gartzman
--------------------------
Its: President
ADDRESS: 12 NE 5th Avenue
------------------------
Delray Beach, FLA 33483
------------------------
------------------------
Facsimile No.: (561) 234-8885
--- --------
-7-
<PAGE>
Exhibit 4.4
STOCK PURCHASE WARRANT
THREE HUNDRED FIFTY THOUSAND (350,000) WARRANTS
TO PURCHASE COMMON STOCK OF
JAVA CENTRALE, INC.
THIS WARRANT IS TO CERTIFY THAT JAVA CENTRALE, INC., a California
corporation (the "Company") has, effective as of June 12, 1996, authorized the
issuance to THE HAYDEN GROUP, a Nevada Corporation, ("Hayden"), of rights to
purchase (the "Warrants") an aggregate of Three Hundred Fifty Thousand (350,000)
fully-paid and non-assessable shares of the no par value Common Stock of the
Company (the "Warrant Shares"), on the basis of one Share for each Warrant,
exercisable at any time prior to 5:00 PM, California time, on June 12, 1997 (the
"Expiration Time"), at the principal office of the Company, on payment of the
price per Share specified in Section 2 of this Warrant and subject to the terms
and conditions governing this Warrant hereinafter expressed.
THIS IS TO CERTIFY ALSO THAT, for value received, the Company agrees,
subject to the terms and conditions hereinafter expressed, to sell and deliver
to Hayden 350,000 fully-paid and nonassessable Warrants.
This Warrant is nontransferable, shall be subject to all of the terms
hereof as set forth below, and shall become void, and terminate and lapse, at
the Expiration Time, after which this Warrant shall be of no further force nor
effect.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the undersigned, duly authorized thereunto.
DATED as of June 12, 1996.
JAVA CENTRALE, INC.
By: /s/GARY C. NELSON
-----------------
Gary C. Nelson
Its President
<PAGE>
WARRANTS TO PURCHASE COMMON STOCK
The terms and conditions with respect to the holding and exercise of these
Stock Purchase Warrants are as follows.
1. NUMBER OF SHARES ACQUIRABLE UPON EXERCISE; CERTAIN
ADJUSTMENTS.
(a) Hayden shall be initially entitled to receive, upon exercise
hereof, up to Three Hundred Fifty Thousand (350,000) shares of the Company's
Common Stock, subject, however, to adjustment as provided below (the "Warrant
Shares").
(b) If, following the date hereof and prior to the Expiration Time
(as defined below), the outstanding shares of the Company's Common Stock shall
be increased or decreased through a stock split, stock dividend, stock
consolidation, or otherwise, without consideration to the Company, an
appropriate and proportionate adjustment shall be made in the number and kind of
shares as to which the Warrants may be exercised. By way of example only, if
the Company should undergo a two-for-one stock split of its outstanding shares
of Common Stock, the number of Warrant Shares for which the Warrants may be
exercised would thereupon increase to 700,000 shares.
(c) Any increase or decrease in the number of shares obtainable
through the exercise of the Warrants shall become effective immediately
following the effective time of the stock split or consolidation causing such
increase or decrease, or in the case of an increase required by a stock
dividend, shall become effective as of the payment or distribution date of such
dividend.
(d) No fractional shares of stock shall be issued or made available
under this Warrant on account of any such adjustment, and fractional share
interests shall be disregarded.
2. EXERCISE PRICE; ADJUSTMENT IN CERTAIN EVENTS.
(a) The Warrants shall be initially exercisable for the following
purchase prices per Warrant Share, subject to the adjustments set forth below
(the "Exercise Price"). The Exercise Price shall remain unchanged until the
occurrence of one of the events described in Section 1(b), above.
(b) The Exercise Price for the Warrant Shares shall be as follows:
(i) Hayden shall have the right to purchase up to One Hundred
Seventy-Five Thousand (175,000) Warrant Shares at One Dollar ($1.00) per
share; and
-2-
<PAGE>
(ii) Hayden shall have the right to purchase up to an additional One
Hundred Seventy-Five Thousand (175,000) Warrant Shares at One Dollar and
Fifty Cents ($1.50) per share.
(c) Subject to all of the other terms of this Warrant, Hayden may
purchase any or all of the Warrant Shares at any time during the term of this
Warrant, and it need not purchase any number of Warrant Shares at any given
Exercise Price before purchasing any of the other Warrant Shares at that or any
other Exercise Price.
(d) In the event of a change in the number of shares of Common Stock
which may be caused by any event described in Section 1(b), above, a
corresponding adjustment changing the exercise price per share of Common Stock
attributable to any unexercised Warrants shall likewise be made. By way of
example, only, if the Company should undergo a two-for-one stock split of its
outstanding shares of Common Stock as described in Section 1(b), above, then in
addition to the change in number of shares for which the Warrants may be
exercised as described in Section 1(b), the Exercise Prices for each share of
Common Stock for which a Warrant may thereafter be exercised would be reduced as
follows: (i) the per share Exercise Price for the Warrant Shares described in
Section 2(b)(i), above would be reduced from One Dollar ($1.00) to Fifty Cents
($0.50); and (ii) the per share Exercise Price for the Warrants described in
Section 2(b)(ii), above would be reduced from One Dollar and Fifty Cents ($1.50)
to Seventy-Five Cents ($0.75).
3. METHOD OF EXERCISE. Hayden may exercise its right to purchase
Warrant Shares pursuant to this Warrant at any time prior to the Expiration
Time, by (a) completing in the manner indicated, and executing, the attached
Subscription Form for that number of Warrant Shares which it is entitled, and
desires, to purchase; (b) surrendering the Warrant to the Company at its
principal place of business in Sacramento, California; and (c) paying the
appropriate purchase price for the Warrant Shares, by cash, money order, bank
draft, or certified check, payable to the Company at its principal place of
business in Sacramento, California. Upon such surrender and payment, the
Company will issue to Hayden the number of Warrant Shares so subscribed for.
4. EFFECT OF EXERCISE. Upon surrender of this Warrant and due payment
of the exercise price, the Company will issue to Hayden the number of shares of
Common Stock subscribed for, and Hayden will be a shareholder of the Company in
respect of such Common Stock as of the date on which the shares representing
such Common Stock are issued by the Company's Transfer Agent and Registrar.
5. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. No person or entity shall
be considered to be a shareholder of the Company for any purpose until the
exercise of the Warrant as provided herein and the due and formal issuance of
Warrant Shares by the Company's Transfer Agent and Registrar thereupon.
-3-
<PAGE>
6. NO RIGHTS AFTER THE EXPIRATION TIME. Nothing contained in this
Warrant, or in any instrument evidencing the Warrant, shall confer on any person
or entity any right to subscribe for or purchase, after the Expiration Time, any
security of or issued by the Company. From and after the Expiration Time, this
Warrant and all rights hereunder shall be valueless, unexercisable, void, and of
no further force or effect.
7. NONTRANSFERABILITY. This Warrant shall not be transferrable, and any
attempt to sell, assign, transfer, hypothecate, or otherwise convey or encumber
any interest herein or therein shall be void. The Company shall have no
obligation to recognize any such sale, assignment, transfer, hypothecation, or
other conveyance or encumbrance, to reflect such transaction on the official
records of the Company, or to issue Warrants or shares of its Common Stock to
any party in violation of this provision.
8. SUBDIVISION. This Warrant may be divided and subdivided into two or
more certificates, evidencing the total number of Warrants provided herein, upon
written demand therefor delivered to the Company. This Warrant may be exercised
for all or any part of the Warrant Shares, and in such event the Company shall
issue a new Warrant Certificate, evidencing the balance of the Warrant Shares
not previously subscribed for. Notwithstanding the foregoing sentences,
however, no Warrant Certificate shall be issued, and no exercise of a Warrant
shall be permitted, involving any fraction of one Share.
9. NO BREACH OR TERMINATION OF CONSULTING AGREEMENT. This Warrant is
issued by the Company pursuant to, and in accordance with the terms of, that
certain Consulting Agreement, dated as of June 12, 1996, between Hayden and the
Company. In the event that Hayden shall breach any of the terms of the said
Consulting Agreement, or if any of the representations, warranties, or covenants
made by Hayden shall be or become untrue, or shall be violated by Hayden in any
material respect, or if the Consulting Agreement shall be terminated by Hayden
for any reason, then this Warrant shall become immediately void, and all of
Hayden's rights hereunder shall automatically be terminated, without notice or
any further action on the part of the Company.
10. MISCELLANEOUS.
(a) This Warrant shall be governed by and construed in accordance
with the internal laws of the State of California, without reference to the
choice of laws provisions thereof.
(b) The captions set forth in this Warrant are for convenience only,
and shall not be used in the construction hereof.
(c) If this Warrant, or any paragraph, sentence, term, or provision
hereof, is invalidated on any ground by any court of competent jurisdiction, the
remainder hereof shall, notwithstanding such invalidation, remain in full force
in effect, and each other
-4-
<PAGE>
provision of this Warrant shall thereafter be construed and enforced in such a
manner as to give the fullest possible effect to the intention and purposes
expressed herein.
-5-
<PAGE>
JAVA CENTRALE, INC.
WARRANT SUBSCRIPTION FORM
Stock Purchase Warrants dated as of June 12, 1996
TO: Java Centrale, Inc.
ATTENTION: Chief Financial Officer
1610 Arden Way, Suite 145
Sacramento, CA 95815
RE: Exercise of Stock Purchase Warrants
Pursuant to the terms of that certain Stock Purchase Warrant, dated as of
June 12, 1996 (the "Warrant"), which Warrant is attached to this Subscription
Form, the undersigned hereby subscribes for _____ whole shares of the Company's
no par value Common Stock, at a price of $______ per share or at such other
price as may be applicable in accordance with the terms of the Warrant.
TOTAL SUBSCRIPTION PRICE: $
----------------
The undersigned hereby directs and requires that the shares of Common Stock
being subscribed for hereby be issued and delivered as follows:
Full Name of Shareholder: ________________________________
Full Address: _______________________________________________
_______________________________________________
_______________________________________________
Number of Shares for Which Subscribed: ___________________________
DATED: _____________
THE HAYDEN GROUP
By:__________________________
__________________________
Its_______________________
NOTE: This Subscription Form must be signed and accompanied by payment to
Java Centrale, Inc., in full, of the appropriate subscription price, in cash or
by money order, bank draft, or certified check, payable to the Company at its
principal place of business in Sacramento, California, and must be received by
the Company prior to 5:00 PM, California time, on June 12, 1997 (the
"Expiration Time"), after which time all rights represented by the attached
Stock Purchase Warrant will expire.
-6-
<PAGE>
JAVA CENTRALE, INC. ACCEPTS NO RESPONSIBILITY FOR THE DELIVERY TO IT OF
THIS SUBSCRIPTION FORM OR THE ACCOMPANYING STOCK PURCHASE AGREEMENT. SUFFICIENT
TIME SHOULD BE ALLOWED FOR THE DELIVERY OF THESE DOCUMENTS PRIOR TO THE
EXPIRATION TIME.
Upon surrender of this Subscription Form and the Stock Purchase Warrant,
and payment of the subscription price as provided therein, the Company will
issue the number of shares of Common Stock subscribed for, and such persons or
entities will thereupon become shareholders of the Company. If a lesser number
of shares is subscribed for than the number of shares described in the Stock
Purchase Warrant, the Company shall issue a further Stock Purchase Warrant in
respect of the unsubscribed shares of Common Stock not subscribed for hereby.
-7-
<PAGE>
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is effective as of the 12th day
of June, 1996, by and between JAVA CENTRALE, INC., a California corporation,
(the "Company") and Meyers Pollock Robbins, Inc., a New York corporation, (the
"Consultant").
R E C I T A L S
A. The Company is a publicly-held company.
B. The Consultant is knowledgeable and experienced in the business of
providing financial and public relations services to publicly traded companies.
C. The Company desires to retain the Consultant to provide specified
services for the Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is acknowledged by all
parties hereto, the parties do hereby agree as follows:
1. DUTIES OF CONSULTANT.
(a) The Company hereby engages Consultant to provide financial and
shareholder information services. Such services shall include, in general,
advice to and consultation with the Company's management concerning: corporate
finance, corporate development, investor profile information, methods of
expanding investor support, and increasing investor awareness of the Company and
its strategy and products.
(b) The parties mutually recognize and agree that Consultant, in
rendering advice or recommendations to the Company, is not and will not be
responsible for any management decisions on behalf of the Company and that it is
not authorized or empowered to commit the Company to any recommendation or
course of action. No document, material, or information regarding the Company
or its business shall be released, or publicly or privately disseminated, by
Consultant or its affiliates without the prior approval of the Company.
-1-
<PAGE>
2. TERM OF THE AGREEMENT.
(a) This Agreement shall continue in effect until the close of
business on June 12, 1997, unless terminated earlier as provided below.
(b) Notwithstanding the provisions of the foregoing paragraph, either
party to this Agreement may in its sole discretion terminate it, upon sixty (60)
days' written notice, at any time.
3. COMPENSATION.
(a) As compensation for the services to be provided by Consultant to
the Company pursuant to this Agreement, the Company hereby grants to Consultant
warrants (the "Warrants") to purchase a total of Three Hundred Fifty Thousand
(350,000) fully paid and nonassessable shares of its common stock (the "Warrant
Shares") at the purchase price of One Dollar and Fifty Cents ($1.50) per Warrant
Share, subject to the terms of this Agreement and on the other terms specified
herein and in the Warrant Agreement attached hereto as Exhibit A.
(b) It is expressly agreed that Consultant shall be responsible for
and shall pay any and all expenses incurred by Consultant or others in
performing the services to be performed by it or under its direction pursuant to
this Agreement. It is understood that such expenses to be borne by Consultant
shall include, but not be limited to, postage and other expenses of mailings,
agency fees and media fees incurred in connection with the placement of any
publication, advertisement or program, and travel and communications expenses.
(c) The issuance and delivery of the Warrant Shares is subject to the
registration of the Warrant Shares pursuant to the Securities Act of 1933. It
is anticipated that the Warrant Shares will be registered with the Securities
and Exchange Commission as soon as practicable following the execution and
delivery of this Agreement.
4. SERVICES NOT EXCLUSIVE. Consultant shall devote such of its time and
effort as is necessary to the discharge of its duties hereunder. The Company
acknowledges that Consultant is engaged in other business activities and that it
will continue such activities during the term of this Agreement. Consultant
shall not be restricted from engaging in other business activities during the
term of this Agreement, except that during such term Consultant shall not,
without the Company's written consent, represent any other public or non-public
company which is in direct competition with the Company. Similarly, the Company
shall not in any way be restricted from engaging such other consultants,
employees, or
-2-
<PAGE>
advisors, for whatever purposes, as it may deem appropriate during the term
hereof.
5. CONFIDENTIALITY; INSIDER TRADING.
(a) Consultant acknowledges that from time to time it or its
employees, officers, directors, and agents may have access to confidential
documents and information regarding the Company and its business. Consultant
represents and warrants that (i) all such information and documents belong to
the Company, are proprietary, and contain trade secrets and other confidential
information, (ii) neither it nor such employees, officers, directors, or
affiliates will, during or subsequent to the term of this Agreement, divulge,
furnish, or make accessible to any person (other than with the prior written
permission of the Company) any such documents, knowledge, or information or
plans of the Company with respect to the Company or its business, and (iii)
Consultant hereby assigns and agrees to assign to the Company all rights in such
information, knowledge, and/or documents which it may receive during the term
hereof.
(b) Consultant shall not purchase or sell any shares of the Company's
common stock at any time during which Consultant is in possession of material
nonpublic information regarding the Company or its business. For the purposes
of this Section 5, any such nonpublic information shall be deemed to be
nonpublic prior to its disclosure to the public and for a period of 72 hours
after any such disclosure.
6. REPRESENTATIONS OF CONSULTANT.
Consultant represents and warrants to the Company as follows:
(a) Consultant has received from the Company, and has carefully
reviewed, (i) the Company's annual report on Form 10-K for the fiscal year ended
March 31, 1995, (ii) the Company's report on Form 10-Q for the quarter ended
December 31, 1996 (such reports being collectively referred to herein as the
"Reports"), and (iii) such other information and documents pertaining to the
Company as it has deemed necessary in order to be able to properly evaluate the
Company's prospects and financial condition.
(b) Consultant has had a reasonable opportunity to ask questions of
and receive answers from the Company concerning the Company and its business and
financial affairs, and all such questions, if any, have been answered to its
full satisfaction.
(c) Consultant has such knowledge and expertise in financial and
business matters that it is capable of evaluating the merits and risks involved
in an investment in the Warrant Shares.
-3-
<PAGE>
(d) Except as set forth in this Agreement, no representations or
warranties have been made to Consultant by the Company or any agent, employee or
affiliate of the Company; and in entering into this transaction, Consultant is
relying upon the results of its own independent investigation.
(e) Consultant is aware that because of the Company's financial
position and other factors, the acquisition of the shares to be paid to
Consultant as compensation hereunder involves a high degree of risk, including
the risk that Consultant may lose its entire investment in the shares of common
stock.
(f) The Warrant Shares are being acquired by Consultant for its own
account and not on behalf of any other person, and are being acquired for
investment purposes and not for distribution.
(g) The services to be performed pursuant to this Agreement are not
in connection with or dependent upon the offer or sale of any of the Company's
securities, whether in a capital raising transaction or otherwise.
(h) Consultant shall not transfer or sell the Warrant Shares without
registration under the Act and any applicable state securities laws, unless
exemptions from such registration requirements are available.
(i) Neither Consultant nor any of its employees or affiliates is an
officer, director, employee, affiliate, or agent of the Company.
7. REPRESENTATIONS OF THE COMPANY.
The Company represents and warrants to Consultant as follows:
(a) The Company will file a Registration Statement on Form S-8 (the
"Registration Statement") to register the Warrant Shares as soon as practicable
after the date of this Agreement.
(b) The Company will comply with applicable state securities laws and
regulations with respect to the registration or qualification of the Warrant
Shares.
(c) Upon issuance in accordance with the terms of this Agreement, the
Warrant Shares will be duly authorized, validly issued, and unassessable shares
of the Company's common stock.
(d) All necessary corporate action has been or will be taken by the
Company in order to authorize the execution and performance of this Agreement by
the Company.
-4-
<PAGE>
8. ARBITRATION. Any Dispute arising between the Company and Consultant
arising out of or related to this Agreement or breach thereof, shall be settled
by arbitration in accordance with the rules of the American Arbitration
Association, which shall be conducted in the State of California, County of
Sacramento. Any award made by such arbitrators shall be binding and conclusive
for all purposes thereof, may include injunctive relief, as well as orders for
specific performance, and may be entered as a final judgment in any court of
competent jurisdiction. No arbitration arising out of or relating to this
Agreement shall include, by consolidation or joinder or in any other manner,
parties other than the Company, Consultant, and other persons substantially
involved in common questions of fact or law whose presence is required if
complete relief is to be afforded in such arbitration. The cost and expenses of
such arbitration shall be borne in accordance with the determination of the
arbitrators and may include reasonable attorney's fees. Each party hereby
further agrees that service of process may be made upon it by registered or
certified mail or personal service at the address provided for herein.
9. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California, without regard to the choice of law provisions thereof.
The parties agree that any suit or proceeding in connection with, arising out
of, or relating to this Agreement shall be instituted only in a court (whether
federal or California) located in Sacramento County, California, and the
parties, for the purpose of any such suit or proceeding, irrevocably consent and
submit to the personal and subject matter jurisdiction and venue of any such
court in any such suit or proceeding.
(b) AMENDMENTS AND WAIVERS. This Agreement may be amended or
modified only with the mutual written consent of the each of the parties hereto.
Notwithstanding the foregoing, any covenant, condition, or term contained in
this Agreement may be waived, or a breach thereof may be excused as to that
party individually, by a writing signed by the party or parties directly
entitled to the benefits thereof or remedies therefor.
(c) SURVIVAL OF WARRANTIES. The representations and covenants of the
parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement for a period of two years from the date
hereof, and shall in no way be affected by any investigation on the subject
matter thereof made by or on behalf of the parties prior to the date hereof or
during the said two-year period.
-5-
<PAGE>
(d) ASSIGNS; NO THIRD-PARTY BENEFICIARIES. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and upon their respective permitted assigns. Notwithstanding anything
to the contrary herein, no party's rights or obligations under this Agreement
may be assigned without the prior written consent of the other party to this
Agreement, and any such attempted assignment without such consent shall be void.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
(e) PARTIAL VALIDITY; ENFORCEMENT. If the application of any
provision or provisions of this Agreement to any particular facts or
circumstances shall be held to be invalid or unenforceable by any court of
competent jurisdiction, then (i) the validity and enforceability of such
provision or provisions as applied to any other particular facts or
circumstances and the validity of the other provisions of this Agreement shall
not in any way be affected or impaired thereby, and (ii) such provision or
provisions shall be reformed, without further action by the parties hereto, to
and only to the extent necessary to make the same valid and enforceable when
applied to such particular facts and circumstances.
(f) EXPENSES. Each party hereto shall bear its own legal expenses,
attorney's fees, and other costs incurred in connection herewith.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all agreements between the parties, written or oral, regarding the
same.
(h) COUNTERPARTS; EXHIBITS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be addressed to the party to be notified at
the address indicated for such party on the signature page hereof, or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties. Such notice shall be deemed effectively given upon
(i) personal delivery to the party to be notified, (ii) three (3) days after it
has been deposited with the United States Post Office, by registered or
certified mail, return receipt requested, postage prepaid, (iii) the next
business day after it has been deposited for next-day delivery with an overnight
courier such as Federal Express, or (iv) when delivered by facsimile or
electronic
-6-
<PAGE>
transmission, upon sender's receipt of a confirmation of receipt of facsimile or
electronic transmission.
(j) TITLES AND SUBTITLES. The titles and subtitles used in this
Termination Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
(k) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
(l) BINDING EFFECT. The provisions of this Agreement shall be
binding upon the parties, their successors and assigns.
AUTHORIZED SIGNATURES
In order to bind the parties to this Agreement, their duly authorized
representatives have signed their names below:
THE COMPANY: JAVA CENTRALE, INC.
By: /S/ GARY C. NELSON
--------------------------
Gary C. Nelson
Its President
ADDRESS: 1610 Arden Way, Suite 145
Sacramento, CA 95815-1240
Facsimile No.: (916) 568-1240
CONSULTANT: MEYERS POLLOCK ROBBINS, INC.
By: /S/ MICHAEL PLOSHNICK
--------------------------
Michael Ploshnick
Its: President
ADDRESS: 1001 Yamato Road
------------------------
Boca Raton, FL 33496
------------------------
------------------------
Facsimile No.: (___) ________
-7-
<PAGE>
STOCK PURCHASE WARRANT
THREE HUNDRED FIFTY THOUSAND (350,000) WARRANTS
TO PURCHASE COMMON STOCK OF
JAVA CENTRALE, INC.
THIS WARRANT IS TO CERTIFY THAT JAVA CENTRALE, INC., a California
corporation (the "Company") has, effective as of June 12, 1996, authorized the
issuance to MEYERS POLLOCK ROBBINS, INC., a New York Corporation, ("Meyers"), of
rights to purchase (the "Warrants") an aggregate of Three Hundred Fifty Thousand
(350,000) fully-paid and non-assessable shares of the no par value Common Stock
of the Company (the "Warrant Shares"), on the basis of one Share for each
Warrant, exercisable at any time prior to 5:00 PM, California time, on June 12,
1997 (the "Expiration Time"), at the principal office of the Company, on payment
of the price per Share specified in Section 2 of this Warrant and subject to the
terms and conditions governing this Warrant hereinafter expressed.
THIS IS TO CERTIFY ALSO THAT, for value received, the Company agrees,
subject to the terms and conditions hereinafter expressed, to sell and deliver
to Meyers 350,000 fully-paid and nonassessable Warrants.
This Warrant is nontransferable, shall be subject to all of the terms
hereof as set forth below, and shall become void, and terminate and lapse, at
the Expiration Time, after which this Warrant shall be of no further force nor
effect.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the undersigned, duly authorized thereunto.
DATED as of June 12, 1996.
JAVA CENTRALE, INC.
By: /S/GARY C. NELSON
-----------------
Gary C. Nelson
Its President
<PAGE>
WARRANTS TO PURCHASE COMMON STOCK
The terms and conditions with respect to the holding and exercise of these
Stock Purchase Warrants are as follows.
1. NUMBER OF SHARES ACQUIRABLE UPON EXERCISE; CERTAIN
ADJUSTMENTS.
(a) Meyers shall be initially entitled to receive, upon exercise
hereof, up to Three Hundred Fifty Thousand (350,000) shares of the Company's
Common Stock, subject, however, to adjustment as provided below.
(b) If, following the date hereof and prior to the Expiration Time
(as defined below), the outstanding shares of the Company's Common Stock shall
be increased or decreased through a stock split, stock dividend, stock
consolidation, or otherwise, without consideration to the Company, an
appropriate and proportionate adjustment shall be made in the number and kind of
shares as to which the Warrants may be exercised. By way of example only, if
the Company should undergo a two-for-one stock split of its outstanding shares
of Common Stock, the number of shares for which the Warrants may be exercised
would thereupon increase to 700,000 shares.
(c) Any increase or decrease in the number of shares obtainable
through the exercise of the Warrants shall become effective immediately
following the effective time of the stock split or consolidation causing such
increase or decrease, or in the case of an increase required by a stock
dividend, shall become effective as of the payment or distribution date of such
dividend.
(d) No fractional shares of stock shall be issued or made available
under this Warrant on account of any such adjustment, and fractional share
interests shall be disregarded.
2. EXERCISE PRICE; ADJUSTMENT IN CERTAIN EVENTS.
(a) The Warrants shall be initially exercisable for the following
purchase prices per Share, subject to the adjustments set forth below (the
"Exercise Prices"). The Exercise Price shall remain unchanged until the
occurrence of one of the events described in Section 1(b), above.
(b) The Exercise Prices for the Warrants shall be One Dollar and
Fifty Cents ($1.50) per share.
(c) Subject to all of the other terms of this Warrant, Meyers may
purchase any or all of the Warrant Shares at any time during the term of this
Warrant.
-2-
<PAGE>
(d) In the event of a change in the number of shares of Common Stock
which may be caused by any event described in Section 1(b), above, a
corresponding adjustment changing the exercise price per share of Common Stock
attributable to any unexercised Warrants shall likewise be made. By way of
example, only, if the Company should undergo a two-for-one stock split of its
outstanding shares of Common Stock as described in Section 1(b), above, then in
addition to the change in number of shares for which the Warrants may be
exercised as described in Section 1(b), the Exercise Prices for each share of
Common Stock for which a Warrant may thereafter be exercised would be reduced to
Seventy-Five Cents ($0.75).
3. METHOD OF EXERCISE. Meyers may exercise its right to purchase
Warrant Shares pursuant to this Warrant at any time prior to the Expiration
Time, by (a) completing in the manner indicated, and executing, the attached
Subscription Form for that number of Warrant Shares which it is entitled, and
desires, to purchase; (b) surrendering the Warrant to the Company at its
principal place of business in Sacramento, California; and (c) paying the
appropriate purchase price for the Warrant Shares, by cash, money order, bank
draft, or certified check, payable to the Company at its principal place of
business in Sacramento, California. Upon such surrender and payment, the
Company will issue to Meyers the number of Warrant Shares so subscribed for.
4. EFFECT OF EXERCISE. Upon surrender of this Warrant and due payment
of the exercise price, the Company will issue to Meyers the number of shares of
Common Stock subscribed for, and Meyers will be a shareholder of the Company in
respect of such Common Stock as of the date on which the shares representing
such Common Stock are issued by the Company's Transfer Agent and Registrar.
5. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. No person or entity shall
be considered to be a shareholder of the Company for any purpose until the
exercise of the Warrant as provided herein and the due and formal issuance of
Warrant Shares by the Company's Transfer Agent and Registrar thereupon.
6. NO RIGHTS AFTER THE EXPIRATION TIME. Nothing contained in this
Warrant, or in any instrument evidencing the Warrant, shall confer on any person
or entity any right to subscribe for or purchase, after the Expiration Time, any
security of or issued by the Company. From and after the Expiration Time, this
Warrant and all rights hereunder shall be valueless, unexercisable, void, and of
no further force or effect.
7. NONTRANSFERABILITY. This Warrant shall not be transferrable, and any
attempt to sell, assign, transfer, hypothecate, or otherwise convey or encumber
any interest herein or
-3-
<PAGE>
therein shall be void. The Company shall have no obligation to recognize any
such sale, assignment, transfer, hypothecation, or other conveyance or
encumbrance, to reflect such transaction on the official records of the Company,
or to issue Warrants or shares of its Common Stock to any party in violation of
this provision.
8. SUBDIVISION. This Warrant may be divided and subdivided into two or
more certificates, evidencing the total number of Warrants provided herein, upon
written demand therefor delivered to the Company. This Warrant may be exercised
for all or any part of the Warrant Shares, and in such event the Company shall
issue a new Warrant Certificate, evidencing the balance of the Warrant Shares
not previously subscribed for. Notwithstanding the foregoing sentences,
however, no Warrant Certificate shall be issued, and no exercise of a Warrant
shall be permitted, involving any fraction of one Share.
9. NO BREACH OR TERMINATION OF CONSULTING AGREEMENT. This Warrant is
issued by the Company pursuant to, and in accordance with the terms of, that
certain Consulting Agreement, dated as of June 12, 1996, between Meyers and the
Company. In the event that Meyers shall breach any of the terms of the said
Consulting Agreement, or if any of the representations, warranties, or covenants
made by Meyers shall be or become untrue, or shall be violated by Meyers in any
material respect, or if the Consulting Agreement shall be terminated by Meyers
for any reason, then this Warrant shall become immediately void, and all of
Meyers's rights hereunder shall automatically be terminated, without notice or
any further action on the part of the Company.
10. MISCELLANEOUS.
(a) This Warrant shall be governed by and construed in accordance
with the internal laws of the State of California, without reference to the
choice of laws provisions thereof.
(b) The captions set forth in this Warrant are for convenience only,
and shall not be used in the construction hereof.
(c) If this Warrant, or any paragraph, sentence, term, or provision
hereof, is invalidated on any ground by any court of competent jurisdiction, the
remainder hereof shall, notwithstanding such invalidation, remain in full force
in effect, and each other provision of this Warrant shall thereafter be
construed and enforced in such a manner as to give the fullest possible effect
to the intention and purposes expressed herein.
-4-
<PAGE>
JAVA CENTRALE, INC.
WARRANT SUBSCRIPTION FORM
Stock Purchase Warrants dated as of June 12, 1996
TO: Java Centrale, Inc.
ATTENTION: Chief Financial Officer
1610 Arden Way, Suite 145
Sacramento, CA 95815
RE: Exercise of Stock Purchase Warrants
Pursuant to the terms of that certain Stock Purchase Warrant, dated as of
June 12, 1996 (the "Warrant"), which Warrant is attached to this Subscription
Form, the undersigned hereby subscribes for _____ whole shares of the Company's
no par value Common Stock, at a price of $______ per share or at such other
price as may be applicable in accordance with the terms of the Warrant.
TOTAL SUBSCRIPTION PRICE: $
----------------
The undersigned hereby directs and requires that the shares of Common Stock
being subscribed for hereby be issued and delivered as follows:
Full Name of Shareholder: ________________________________
Full Address: _______________________________________________
_______________________________________________
_______________________________________________
Number of Shares for Which Subscribed: ___________________________
DATED: _____________
MEYERS POLLOCK ROBBINS, INC.
By:__________________________
__________________________
Its_______________________
NOTE: This Subscription Form must be signed and accompanied by payment to
Java Centrale, Inc., in full, of the appropriate subscription price, in cash or
by money order, bank draft, or certified check, payable to the Company at its
principal place of business in Sacramento, California, and must be received by
the Company prior to 5:00 PM, California time, on June 12, 1997 (the
"Expiration Time"), after which time all rights represented by the attached
Stock Purchase Warrant will expire.
-5-
<PAGE>
JAVA CENTRALE, INC. ACCEPTS NO RESPONSIBILITY FOR THE DELIVERY TO IT OF
THIS SUBSCRIPTION FORM OR THE ACCOMPANYING STOCK PURCHASE AGREEMENT. SUFFICIENT
TIME SHOULD BE ALLOWED FOR THE DELIVERY OF THESE DOCUMENTS PRIOR TO THE
EXPIRATION TIME.
Upon surrender of this Subscription Form and the Stock Purchase Warrant,
and payment of the subscription price as provided therein, the Company will
issue the number of shares of Common Stock subscribed for, and such persons or
entities will thereupon become shareholders of the Company. If a lesser number
of shares is subscribed for than the number of shares described in the Stock
Purchase Warrant, the Company shall issue a further Stock Purchase Warrant in
respect of the unsubscribed shares of Common Stock not subscribed for hereby.
-6-
<PAGE>
Exhibit 5
[LETTERHEAD]
June 27, 1996
Board of Directors
Java Centrale, Inc.
1610 Arden Way, Suite 145
Sacramento, CA 95815
RE: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We are acting as your counsel in connection with the registration, under
the Securities Act of 1933, as amended (the "Act"), of 1,200,000 shares of the
no par value Common Stock (the "Shares") of Java Centrale, Inc. (the "Company"),
which may be issued pursuant to those certain Stock Purchase Warrants (the
"Warrants"), dated as of June 12, 1996, issued to Growth Science Ventures, Inc.,
The Hayden Group, and Meyers Pollock Robbins, Inc., (together, the
"Consultants"). A Registration Statement on Form S-8 is proposed to be filed
under the Act with respect to the Shares, and this opinion is proposed to be
filed as an exhibit thereto.
In connection with such registration, we have examined the Registration
Statement, the Warrants, and such other documents as we deemed necessary in
order to form the opinions herein expressed. As to various questions of fact
material to such opinions, where relevant facts were not independently verified,
we have relied upon statements of the Company's officers and representations of
the two consultant corporations, and we have assumed the genuineness of all
documents, and copies of documents, provided to us by the Company.
Based upon and subject to the foregoing, after having given due regard to
such issues of law as we have deemed relevant and assuming that (i) the
Registration Statement becomes and remains effective, (ii) the prospectus
delivered to the Consultants, and the Company's delivery procedures, fulfill all
the requirements of the Act through all periods relevant to this opinion, and
(iii) all issuances of the Shares are made in compliance with the Agreements,
the Blue Sky Laws of any states having jurisdiction over such issuances, and the
Act, we are of the opinion that the Shares, when issued, will be validly issued,
fully paid, and nonassessable.
<PAGE>
Board of Directors
June 27, 1996
Page 2
Consent is hereby given to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission that
we are a person whose consent is required to be filed with the Registration
Statement under the provisions of Section 7 of the Securities Act of 1933, as
amended.
This opinion is furnished solely in connection with the Registration
Statement, and may not be used for any other purpose without our express written
consent.
Very truly yours,
ROSENBLUM, PARISH & ISAACS, PC
By: /s/ PHILIP S. BOONE, JR.
------------------------
A Member of the Firm
<PAGE>
Exhibit 24.1
[Logo]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated June 8, 1995 accompanying the financial
statements of Java Centrale, Inc. appearing in the 1995 Annual Report of the
Company to its shareholders included in the Annual Report on Form 10-K for the
year ended March 31, 1995 which are incorporated by reference in this
Registration Statement and Prospectus. We consent to the incorporation by
reference in this Registration Statement and Prospectus, and to the use of our
name as it appears under the caption "Experts".
/s/ Grant Thornton LLP
Sacramento, California
June 27, 1996
