THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAWS. EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN AN
AGREEMENT FROM THE HOLDER, NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE
SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SUCH ACT OR UNDER APPLICABLE STATE SECURITIES OR
BLUE SKY LAWS OR AN EXEMPTION THEREFROM. THIS WARRANT MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO THE EXPRESS PROVISIONS
OF THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH PROVISIONS SHALL HAVE
BEEN COMPLIED WITH.
Right to
Purchase
5,000
Shares of
Common Stock,
par value $.10
per share
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Quaker State Financial Corp.,
or its corporate successors, or its registered assigns (the "Holder"), is
entitled to purchase from THE EASTWIND GROUP, INC., a Delaware corporation (the
"Company"), at any time or from time to time during the period specified in
Paragraph 2 hereof, Five Thousand (5,000) fully paid and nonassessable shares of
the Company's Common Stock, par value $.10 per share (the "Common Stock"), at an
exercise price of $6.63 per share (the "Exercise Price"). The term "Warrant
Shares", as used herein, refers to the shares of Common Stock purchasable
hereunder. The Warrant Shares and the Exercise Price are subject to adjustment
as provided in Paragraph 4 hereof.
This Warrant is subject to the following terms, provisions and
conditions:
1. Manner of Exercise: Issuance of Certificates: Payment for Shares.
----------------------------------------------------------------
Subject to the provisions hereof, this Warrant may be exercised by the Holder,
in whole or in part, by the surrender of this Warrant, together with a complete
exercise agreement in the form attached hereto (the "Exercise Agreement"), to
the Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the Holder), and upon payment to the Company in cash
or by certified or official bank check of the Exercise Price for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so purchased
shall be deemed to be issued to the Holder as the record owner of such shares as
of the close of business on the date on which this Warrant shall have been
surrendered, the completed Exercise Agreement delivered, and payment made for
such shares as set forth above. Certificates for the Warrant Shares so
purchased, representing the aggregate number of shares specified in the Exercise
Agreement, shall be delivered to the Holder within a reasonable time, not
exceeding five (5) business days, after this Warrant shall have been so
exercised. The certificates so delivered shall be in such denominations as may
be requested by the Holder and shall be registered in the name of such Holder or
such other name as shall be designated by such Holder. If this Warrant shall
have been exercised only in part, then, unless this Warrant has expired, the
Company shall, at its expense, at the time of delivery of such certificates,
deliver to the Holder a new Warrant representing the number of shares with
respect to which this Warrant shall not then have been exercised. The Company
shall pay all taxes and other expenses and charges payable in connection with
the preparation, execution, and delivery of stock certificates (and any new
Warrants) pursuant to this Paragraph 1 except that, in case such stock
certificates shall be registered in a name or names other than the Holder at the
request of such Holder, funds sufficient to pay all stock transfer taxes which
shall be payable in connection with the execution and delivery of such stock
certificates shall be paid by the Holder to the Company at the time of the
delivery of such stock certificates by the Company as set forth above.
2. Period of Exercise. This Warrant is exercisable at any time or
------------------
from time to time on or after March 1, 1997 and before 5:00 p.m., Eastern time
on March 1, 2002.
3. Certain Agreements of the Company. The Company hereby covenants
---------------------------------
and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon
-----------------------
issuance, be validly issued, fully paid, and nonassessable and free from all
taxes, liens, and charges with respect to the issue thereof
(b) Reservation of Shares. During the Exercise Period, the Company
---------------------
shall at all times have authorized, and reserved for the purpose of issue upon
exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant.
(c) Certain Actions Prohibited. The Company will not, by
--------------------------
amendment of its charter or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such actions as may reasonably be requested by the Holder
in order to protect the exercise privilege of the Holder against dilution or
other impairment, consistent with the tenor and purpose of this Warrant. Without
limiting the generality of the foregoing, the Company (i) will
-2-
not increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect, and (ii) will
take all such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant.
(d) Successors and Assigns. This Warrant will be binding upon any
entity succeeding to the Company by merger, consolidation or acquisition of all
or substantially all the Company's assets.
4. Antidilution Provisions. During the Exercise Period, the
-----------------------
Exercise Price and the number of Warrant Shares shall be subject to adjustment
from time to time as provided in this Paragraph 4; provided, however, that no
-------- -------
adjustment will be made in the Exercise Price or the Warrant Shares in
connection with the issuance of Common Stock pursuant to this Warrant.
In the event that any adjustment of the Exercise Price as required
herein results in a fraction of a cent, such Exercise Price shall be rounded up
to the nearest cent.
(a) Adjustment of Exercise Price and Number of Shares upon Issuance
------------------------------------------------------------------
of Common Stock. Except as otherwise provided in Paragraphs 4(c) and 4(d)
---------------
hereof, if and whenever on or after the date of issuance of this Warrant, the
Company issues or sells, or in accordance with Paragraph 4(b) hereof is deemed
to have issued or sold, any shares of Common Stock for no consideration or for a
consideration per share (before deduction of reasonable expenses or commissions
or underwriting discounts or allowances in connection therewith) less than the
then current Market Price (as hereinafter defined) of the Common Stock on the
date the Company fixes the price of such issuance of Common Stock (a "Dilutive
Issuance"), then immediately upon the Dilutive Issuance, the Exercise Price will
be reduced to a price determined by dividing (i) the sum of (x) the product
derived by multiplying the Exercise Price in effect immediately prior to the
Dilutive Issuance times the number of shares of Common Stock Deemed Outstanding
(as hereinafter defined) immediately prior to the Dilutive Issuance, plus (y)
the quotient derived from dividing the aggregate consideration (before deduction
for reasonable expenses or commissions or underwriting discounts or allowances
in connection therewith), calculated as set forth in Section 4(b) hereof,
received by the Company upon such Dilutive Issuance by the Market Price on the
date of issuance; by (ii) the total number of shares of Common Stock Deemed
Outstanding immediately after the Dilutive Issuance. Upon each such adjustment
of the Exercise Price hereunder, the number of shares of Common Stock acquirable
upon exercise of this warrant will be adjusted to the number of shares
determined by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of shares of Common Stock acquirable upon exercise of
this Warrant immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(b) Effect on Exercise Price of Certain Events. For purposes of
------------------------------------------
determining the adjusted Exercise Price under Paragraph 4(b) hereof, the
following will be applicable:
-3-
(i) Issuance of Rights or Options. If the Company in any manner issues
or grants any rights or options, whether or not immediately exercisable, to
subscribe for or to purchase Common Stock or other securities convertible into
or exchangeable for Common Stock ("Convertible Securities") (such rights or
options to purchase Common Stock or Convertible Securities are hereinafter
referred to as "Options") and the price per share for which Common Stock is
issuable upon the exercise of such Options is less than the then current Market
Price of the Common Stock on the date of issuance of such Options, then the
maximum total number of shares of Common Stock issuable upon the exercise of all
such Options will, as of the date of the issuance or grant of such Options, be
deemed to be outstanding and to have been issued and sold by the Company for
such price per share. For purposes of the preceding sentence, the "price per
share for which Common Stock is issuable upon the exercise of such Options" is
determined by dividing (i) the minimum total amount, if any, received or
receivable by the Company as consideration for the issuance or granting of all
such Options, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise of all such Options, plus, in the
case of Convertible Securities issuable upon the exercise of such Options, the
minimum aggregate amount of additional consideration payable upon the conversion
or exchange thereof at the time such Convertible Securities first become
convertible or exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the exercise of all such Options. No further
adjustment to the Exercise Price will be made upon the actual issuance of such
Common Stock, upon the exercise of such Options or upon the conversion or
exchange of Convertible Securities issuable upon exercise of such Options.
(ii) Issuance of Convertible Securities. If the Company in
----------------------------------
any manner issues or sells any Convertible Securities, whether or not
immediately convertible (other than where the same are issuable upon the
exercise of Options) and the price per share for which Common Stock is issuable
upon such conversion or exchange is less than the then Current Market Price of
the Common Stock on the date of issuance of such Convertible Securities then the
maximum total number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities will, as of the date of the issuance
of such Convertible Securities, be deemed to be outstanding and to have been
issued and sold by the Company for such price per share. For the purposes of
the preceding sentence, the "price per share for which Common Stock is issuable
upon such conversion or exchange" is determined by dividing (i) the minimum
total amount, if any, received or receivable by the Company as consideration for
the issuance or sale of all such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the Company
upon the conversion or exchange thereof at the time such Convertible Securities
first become convertible or exchangeable, by (ii) the maximum total number of
shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities. No further adjustment to the Exercise Price will be
made upon the actual issuance of such Common Stock upon conversion or exchange
of such Convertible Securities.
(iii) Change in Option Price or Conversion Rate. If there is
-----------------------------------------
a change at any time in (i) the amount of additional consideration payable to
the Company upon the exercise of any Options; (ii) the amount of additional
consideration, if any, payable to the Company upon the
-4-
conversion or exchange of any Convertible Securities; or (iii) the rate at which
any Convertible Securities are convertible into or exchangeable for Common Stock
(other than under or by reason of provisions designed to protect against
dilution), the Exercise Price in effect at the time of such change will be
readjusted to the Exercise Price which would have been in effect at such time
had such Options or Convertible Securities still outstanding provided for such
changed additional consideration or changed conversion rate, as the case may be,
at the time initially granted, issued or sold, and the number of shares of
Common Stock acquirable upon exercise of this Warrant will be correspondingly
readjusted.
(iv) Treatment of Expired Options and Unexercised Convertible
-------------------------------------------- -----------
Securities. If, in any case, the total number of shares of Common
----------
Stock issuable upon exercise of any Option or upon conversion or exchange of any
Convertible Securities is not, in fact, issued and the rights to exercise such
Option or to convert or exchange such Convertible Securities shall have expired
or terminated, the Exercise Price then in effect and the number of shares of
Common Stock acquirable upon exercise of this Warrant, as adjusted, will be
readjusted to the Exercise Price and the number of shares which would have been
in effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of shares
of Common Stock issued upon exercise or conversion thereof), never been issued.
(v) Calculation of Consideration Received. If any Common Stock,
-------------------------------------
Options or Convertible Securities are issued, granted or sold for cash, the
consideration received therefor for purposes of this Warrant will be the amount
received by the Company therefor, before deduction of reasonable commissions,
underwriting discounts or allowances or other reasonable expenses paid or
incurred by the Company in connection with such issuance, grant or sale. In
case any Common Stock, Options or Convertible Securities are issued or sold for
a consideration other than cash, the amount of the consideration other than cash
received by the Company will be the fair value of such consideration, except
where such consideration consists of securities, in which case the amount of
consideration received by the Company will be the Market Price thereof as of the
date of receipt. In case any Common Stock, Options or Convertible Securities
are issued in connection with any merger or consolidation in which the Company
is the surviving corporation, the amount of consideration therefor will be
deemed to be the fair value of such portion of the net assets and business of
the non-surviving corporation as is attributable to such Common Stock, Options
or Convertible Securities, as the case may be. The fair value of any
consideration other than cash or securities will be determined in good faith by
the Board of Directors of the Company.
(c) Subdivision or Combination of Common Stock. If the Company at any
------------------------------------------
time subdivides (by any stock split, stock dividend, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a greater number of shares, then, after the date of
record for effecting such subdivision, the Exercise Price in effect immediately
prior to such subdivision will be proportionately reduced and the number of
shares of Common Stock acquirable upon exercise of this Warrant will be
proportionately increased. If the Company at any time combines (by reverse
stock split, recapitalization,
-5-
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a smaller number of shares, then, after the date of
record for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionately increased and the number of
shares of Common Stock acquirable upon exercise of this Warrant will be
proportionately decreased.
(d) Consolidation, Merger or Sale. In case of any consolidation of
-----------------------------
the Company with, or merger of the Company into any other corporation, or in
case of any sale or conveyance of all or substantially all of the assets of the
Company other than in connection with a plan of complete liquidation of the
Company, then as a condition of such consolidation, merger or sale or
conveyance, adequate provision will be made whereby the Holder will have the
right to acquire and receive upon exercise of this Warrant in lieu of the shares
of Common Stock immediately theretofore acquirable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon exercise of this Warrant
had such consolidation, merger or sale or conveyance not taken place. In any
such case, the Company will make appropriate provision to insure that the
provisions of this Paragraph 4 hereof will thereafter be applicable as nearly as
may be in relation to any shares of stock or securities thereafter deliverable
upon the exercise of this Warrant. The Company will not effect any
consolidation, merger or sale or conveyance unless prior to the consummation
thereof, the successor corporation (if other than the Company) assumes by
written instrument the obligations under this Paragraph 4 and the obligations to
deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be entitled to acquire.
(e) Distribution of Assets. In case the Company shall declare or make
----------------------
any distribution of its assets to holders of Common Stock as a partial
liquidating dividend, by way of return of capital or otherwise, then, after the
date of record for determining stockholders entitled to such distribution, but
prior to the date of distribution, the Holder shall be entitled upon exercise of
this Warrant for the purchase of any or all of the shares of Common Stock
subject hereto, to receive the amount of such assets which would have been
payable to the Holder had such Holder been the holder of such shares of Common
Stock on the record date for the determination of stockholders entitled to such
distribution.
(f) Notice of Adjustment. Upon the occurrence of any event which
--------------------
requires any adjustment of the Exercise Price, then and in each such case the
Company shall give notice thereof to the Holder, which notice shall state the
Exercise Price resulting from such adjustment and the increase or decrease, if
any, in the number of Warrant Shares purchasable at such price upon exercise,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
(g) Minimum Adjustment of Exercise Price. No adjustment of the
------------------------------------
Exercise Price shall be made in an amount less than 1% of the Exercise Price in
effect at the time such adjustment is otherwise required to be made, but any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which,
-6-
together with any adjustments so carried forward, shall amount to not less than
1% of such Exercise Price.
(h) No Fractional Shares. No fractional shares of Common Stock are to
--------------------
be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the Market Price of a share of Common
Stock on the date of such exercise.
(i) Other Notices. In case at any time:
-------------
(i) the Company shall declare any dividend upon the Common Stock
payable in shares of stock of any class or make any other distribution (other
than dividends or distributions payable in cash out of retained earnings) to the
holders of the Common Stock;
(iii) the Company shall offer for subscription pro rata to
the holders of the Common Stock any additional shares of stock of any class or
(ii) there shall be any capital reorganization of the Company, or
reclassification of the Common Stock, or consolidation or merger of the Company
with or into, or sale of all or substantially all its assets to, another
corporation or entity; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation winding-up of the Company;
then, in each such case, the Company shall give to the Holder (a) notice of the
date on which the books of the Company shall close or a record shall be taken
for determining the holders of Common Stock entitled to receive any such
dividend, distribution, or subscription rights or for determining the holders of
Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable approximation thereof by the
Company) when the same shall take place. Such notice shall also specify the
date on which the holders of Common Stock shall be entitled to receive such
dividend, distribution, or subscription rights or to exchange their Common Stock
for stock or other securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding-up, as the case may be. Such notice shall be given at least 30 days
prior to the record date or the date on which the Company's books are closed in
respect thereto. Failure to give any such notice or any defect therein shall not
affect the validity of the proceedings referred to in clauses (i), (ii), (iii)
and (iv) above.
(j) Certain Events. If any event occurs of the type contemplated by
--------------
the adjustment provisions of this Paragraph 4 but not expressly provided for by
such provisions, the Company will give notice of such event as provided in
Paragraph 4(f) hereof, and the Company's Board of Directors will make an
appropriate adjustment in the Exercise Price and the
-7-
number of shares of Common Stock acquirable upon exercise of this Warrant so
that the rights of the Holder shall be neither enhanced nor diminished by such
event.
(k) Certain Definitions.
-------------------
(i) "Common Stock Deemed Outstanding" shall mean the number of
-------------------------------
shares of Common Stock actually outstanding (not including shares of Common
Stock held in the treasury of the Company), plus (x) pursuant to Paragraph
4(b)(i) hereof, the maximum total number of shares of Common Stock issuable upon
the exercise of Options, as of the date of such issuance or grant of such
Options, if any, and (y) pursuant to Paragraph 4(b)(ii) hereof, the maximum
total number of shares of Common Stock issuable upon conversion or exchange of
Convertible Securities, as of the date of issuance of such Convertible
Securities, if any.
(ii) "Market Price" of any security shall be as follows: If
------------
such shares are listed or admitted to trading on one or more national securities
exchanges, the average of the last reported sales prices per share or, in case
no such reported sales take place, the average of the last reported bid and
asked prices per share, in either case on the principal national securities
exchange on which such shares are listed or admitted to trading, for the five
(5) trading days immediately preceding the closing date of the transaction
pursuant to which the securities for which the market price determination is
being made were issued, sold or otherwise transferred (the "Determination
Date"); if such shares are not listed or admitted to trading on a national
securities exchange, but are quoted on a regular (and not sporadic) basis by the
NASD Automated Quotation System ("NASDAQ"), the average of the last reported
sales prices per share for the five (5) trading days immediately preceding the
Determination Date, as furnished by the National Quotation Bureau Incorporated
or such other nationally recognized quotation service as may be selected by the
Company if such Bureau is not at the time furnishing quotations; and if the
securities are not (i) listed or admitted to trading on a national securities
exchange or (ii) quoted by NASDAQ on a regular (and not sporadic) basis, the
market price will be the fair market value thereof determined in good faith by
the Board of Directors of the Company or, if the holder shall object in writing
to such Board determination within twenty (20) days after it is rendered, fair
market value shall be determined in good faith by an independent investment
banking firm selected jointly by the holder and the Board of Directors of the
Company, or if such selection cannot be made, by an independent investment
banking firm selected by the American Arbitration Association in accordance with
its rules. All costs of determining fair market value subsequent to an
objection by the Holder as contemplated in the immediately preceding sentence
shall be borne by the Holder; provided, however, if the fair market value
-------- -------
determined in accordance with the immediately preceding sentence subsequent to
an objection by the Holder is at least 15% less than the fair market value
determined in good faith by the Board of Directors of the Company, such costs
shall be borne by the Company.
(iii) "Common Stock," for purposes of this Paragraph 4,
------------
includes the Common Stock, and any additional class of stock of the Company
having no preference as to dividends or distributions on liquidation, provided
that the shares purchasable pursuant to this Warrant shall include only shares
of Common Stock, in respect of which this
-8-
Warrant is exercisable, or shares resulting from any subdivision or combination
of such Common Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in Paragraph 4(d)
hereof, the stock or other securities or property provided for in such
Paragraph.
5. Issue Tax. The issuance of certificates for Warrant Shares upon
---------
the exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax in respect thereof, provided that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in a
name other than the holder of this Warrant.
6. No Rights or Liabilities as a Shareholder. This Warrant shall
-----------------------------------------
not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company. No provision of this Warrant in the absence of
affirmative action by the holder hereof to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Exercise Price or as a shareholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
7. Transfer, Exchange, and Replacement of Warrant.
----------------------------------------------
(a) Restriction on Transfer. This Warrant and the rights granted
-----------------------
to the Holder are transferable, in whole or in part, only with the prior written
consent of Company, and then upon surrender of this Warrant, together with a
properly executed assignment in the form attached hereto, at the office or
agency of the Company referred to in Paragraph 7(e) below, provided, however,
-------- -------
that any transfer or assignment shall be subject to the conditions set forth in
Paragraph 7(f) hereof. Until due presentment for registration of transfer on
the books of the Company, the Company may treat the registered Holder hereof as
the owner and holder hereof for all purposes and the Company shall not be
affected by any notice to the contrary.
(b) Warrant Exchangeable for Different Denominations. This
------------------------------------------------
Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company referred to in Paragraph 7(e) below, for new Warrants
of like tenor representing in the aggregate the right to purchase the number of
shares of Common Stock which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of shares as shall be
designated by the Holder at the time of such surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
----------------------
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
-9-
(d) Cancellation: Payment of Expenses. Upon the surrender of this
----------------------------------
Warrant in connection with any transfer, exchange, or replacement as provided in
this Paragraph 7, this Warrant shall be promptly canceled by the Company. The
Company shall pay all taxes (other than securities transfer taxes) and all other
expenses and charges payable in connection with the preparation, execution, and
delivery of Warrants pursuant to this Paragraph 7.
(e) Register. The Company shall maintain, at its principal
--------
executive offices (or such other office or agency of the Company as it may
designate by notice to the Holder), a register for this Warrant, in which the
Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time of
-----------------------------------------
the surrender of this Warrant in connection with any exercise, transfer, or
exchange of this Warrant, this Warrant (or, in the case of any exercise, the
Warrant Shares issuable hereunder, shall not be registered under the Securities
Act of 1933, as amended (the "Securities Act"), and under applicable state
securities or blue sky laws, the Company may require, as a condition of allowing
such exercise, transfer, or exchange, (i) that the Holder furnish to the Company
a written opinion of counsel, which opinion and counsel are acceptable to the
Company, to the effect that such exercise, transfer, or exchange may be made
without registration under said Act and under applicable state securities or
blue sky laws and (ii) that the Holder execute and deliver to the Company an
investment letter in form and substance acceptable to the Company. The first
Holder of this Warrant, by taking and holding the same, represents to the
Company that such Holder is acquiring this Warrant for investment and not with a
view to the distribution thereof.
IF THE INITIAL HOLDER OF THIS WARRANT IS A PENNSYLVANIA RESIDENT, SUCH
HOLDER HEREBY AGREES NOT TO SELL THIS WARRANT OR THE WARRANT SHARES FOR A PERIOD
OF 12 MONTHS FROM THE DATE HEREOF, EXCEPT IN ACCORDANCE WITH SECTION 204.011 OF
THE PENNSYLVANIA SECURITIES ACT OF 1972, AS AMENDED.
8. Notices. All notices, requests, and other communications
-------
required or permitted to be given or delivered hereunder to the Holder shall be
in writing, and shall be personally delivered, or shall be sent by certified or
registered mail, postage prepaid and addressed, to such holder at the address
shown for such holder on the books of the Company, or at such other address as
shall have been furnished to the Company by notice from such Holder. All
notices, requests, and other communications required or permitted to be given or
delivered hereunder to the Company shall be in writing, and shall be personally
delivered, or shall be sent by certified or registered mail or by recognized
overnight mail carrier, postage prepaid and addressed, to the office of the
Company at 000 Xxxx Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx, XX
00000 Attention: Chairman, or at such other address as shall have been furnished
to the Holder by notice from the Company. Any such notice, request, or other
communication may be sent by telegram, telex, or telecopy, but shall in such
case be subsequently confirmed by a writing personally delivered or sent by
certified or registered mail
-10-
as provided above. All notices, requests, and other communications shall be
deemed to have been given either at the time of the delivery thereof to (or the
receipt by, in the case of a telegram, telex or telecopy) the person entitled to
receive such notice at the address of such person for purposes of this Paragraph
8, or, if mailed, at the completion of the third full day following the time of
such mailing thereof to such address, as the case may be.
9. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED
-------------
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE BODY OF LAW CONTROLLING CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE STATE OF DELAWARE FOR ANY PROCEEDING TO WHICH
ANY OF THE PARTIES HERETO IS A PARTY AND WHICH RELATES TO THIS WARRANT. TO THE
EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON-CONVENIENS TO THE CONDUCT
OF ANY PROCEEDING INSTITUTED HEREUNDER OR ANY PROCEEDING TO WHICH ANY PARTY TO
THIS WARRANT IS A PARTY AND WHICH RELATES TO THIS WARRANT AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
10. Miscellaneous.
-------------
(a) Amendments. This Warrant and any provision hereof may not be
----------
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by the Company and Holders representing a majority of the shares
of Common Stock acquirable upon exercise of this Warrant.
(b) Descriptive Headings. The descriptive headings of the several
--------------------
paragraphs of this Warrant are inserted for purposes of reference only, and
shall not affect the meaning or construction of any of the provisions hereof.
-11-
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
THE EASTWIND GROUP, INC.
By:__________________________
Its:
Agreed to and Accepted
________________________________
Quaker State Financial Corp. by
its duly authorized ______________
Dated as of March 1, 1997.
-12-
FORM OF EXERCISE AGREEMENT
Dated: __________, __
To: ________________________
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to purchase ______ shares of Common Stock covered by such
Warrant, and makes payment herewith in full therefor at the price per share
provided by such Warrant in cash or by certified or official bank check in the
amount of, or by surrender of securities issued by the Company having a market
value equal to $________. Please issue a certificate or certificates for such
shares of Common Stock in the name of and pay any cash for any fractional share
to:
Name:________________________
Signature:___________________
Address: _____________________
_____________________
Note: The above signature should
correspond exactly with the name
on the face of the within Warrant.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
-13-
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all of the rights of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock covered thereby set forth herein
below, to:
Name of Assignee Address No. of Shares
---------------- ------- -------------
, and hereby irrevocably constitutes and appoints ___________________ as agent
and attorney-in-fact to transfer said Warrant on the books of the within-named
corporation, with full power of substitution in the premises.
Dated: ___________, __
In the presence of
_______________________
Name:
Signature:
Title of Signing Officer or Agent
(if any):
____________________________________
Address: ________________________
________________________
Note: The above signature should correspond
exactly with the name on the face of
the within Warrant.
-14-
