Exhibit 10.2
SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT
THIS SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of July 30, 1998, by and between Bentley
International, Inc., a Missouri corporation (the "Company"), and Interiors,
Inc., a Delaware corporation ("Investor").
RECITALS
A. WHEREAS, the Company and Investor have entered into that certain
Stock Purchase Agreement dated as of July 7, 1998 (the "Stock Purchase
Agreement").
B. WHEREAS, in connection with the transactions contemplated by the
Stock Purchase Agreement, Investor desires to purchase, and the Company desires
to sell, the securities described herein on the terms and conditions described
herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Definitions. Unless the context otherwise requires, the terms
defined in this Section 1 shall have the meanings herein specified for
all purposes of this Agreement, applicable to both the singular and
plural forms of any of the terms herein defined.
"Agreement" means this Securities Purchase and Registration
Rights Agreement.
"Common Stock" means the common stock, $.18 par value, of the Company.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Investor" has the meaning assigned to it in the
introductory paragraph of this Agreement.
"Investor Common Stock" means the Class A Common Stock, par value $.001
per share, of Investor.
"Lien" means any mortgage, pledge, security interest, encumbrance,
community property interest, trust, option, lien or charge of any
kind, including, without limitation, any conditional sale or other
title retention agreement, any lease in the nature thereof and the
filing of or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction and including any lien or
charge arising by statute or other law.
"Person" includes any natural person, corporation, trust, association,
company, partnership, limited liability company, joint venture and
other entity and any government, governmental agency, instrumentality
or political subdivision.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement
in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
"Registrable Securities" means (1) the Shares, (2) the Warrant Shares,
and (3) any securities issued or issuable with respect to the Common
Stock referred to in clauses (1) or (2) above by way of a stock
dividend or stock split or in connection with a combination of shares,
reclassification, recapitalization, merger or consolidation or
reorganization.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock which have been issued to
Investor by the Company pursuant to this Agreement.
"Warrant" means the warrant to purchase Common Stock which has been
issued to Investor by the Company pursuant to this Agreement, and any
warrant issued upon transfer or substitution thereof.
"Warrant Certificate" means the certificate dated of even date
herewith, held by Investor and evidencing the right to purchase up to
300,000 shares of Common Stock.
"Warrant Shares" means the Common Stock issued or issuable upon
exercise of the Warrant.
Purchase and Sale of Shares.
(a) Authorization of Shares. The Company has authorized the issuance and sale of
ONE HUNDRED FIFTY THOUSAND (150,000) shares of Common Stock of the Company.
(b) Sale and Purchase of Shares. Concurrently herewith, the Company hereby sells
to Investor and Investor hereby purchases from the Company ONE HUNDRED FIFTY
THOUSAND (150,000) shares of Common Stock of the Company for an aggregate
purchase price of SEVEN HUNDRED FIFTY THOUSAND (750,000) shares of Investor
Common Stock. Investor hereby acknowledges receipt of the Shares, and the
Company hereby acknowledges receipt of the purchase price therefor.
Purchase and Sale of Warrant.
(a) Authorization of Warrant. The Company has authorized the issuance and sale
of the Warrant to purchase THREE HUNDRED THOUSAND (300,000) shares of Common
Stock of the Company, having the terms set forth herein and in the Warrant
attached hereto as Exhibit A.
(b) Sale and Purchase of Warrant. Concurrently herewith, the Company hereby
sells to Investor and Investor hereby purchases from the Company the Warrant for
a purchase price of SEVEN HUNDRED FIFTY THOUSAND (750,000) shares of Investor
Common Stock. Investor hereby acknowledges receipt of the Warrant, and the
Company hereby acknowledges receipt of the purchase price therefor.
Company Representations and Warranties.
In connection with the purchase of the Shares and the Warrant hereunder, the
Company represents and warrants to Investor the following:
(a) Organization, Power and Authority of the Company. The
Company has been duly organized and is existing as a corporation in good
standing under the laws of the State of Missouri with full power and authority
(corporate and other) to own and lease its properties and to conduct its
business as currently conducted.
(b) Authorization. The Company has the corporate power and
authority to execute and deliver this Agreement, to consummate the transactions
contemplated hereby and to perform its obligations under this Agreement. The
execution and delivery by the Company of this Agreement, and the consummation by
the Company of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action by the Company. This Agreement, upon its
execution and delivery by the Company (assuming the due authorization, execution
and delivery hereof by the other parties hereto), will constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency and similar laws relating to creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) No Conflict or Violation. Subject to compliance with the
applicable requirements of the Securities Act and any applicable state
securities laws, the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not (a) conflict
with or result in a breach or violation of any term or provision of, or
constitute a default under (with or without notice or passage of time, or both),
or otherwise give any Person a basis for accelerated or increased rights or
termination or nonperformance under, any indenture, mortgage, deed of trust,
loan or credit agreement, lease, license or other agreement or instrument to
which the Company is a party or by which the Company is bound or affected or to
which any of the property or assets of the Company is bound or affected, (b)
result in the violation of the provisions of the Articles of Incorporation or
Bylaws of the Company or any legal requirement applicable to or binding upon the
Company, (c) result in the creation or imposition of any Lien upon any property
or asset of the Company or (d) otherwise adversely affect the contractual or
other legal rights or privileges of the Company.
(d) Capitalization. The authorized capital stock of the
Company consists of 10,000,000 shares of the Company's Common Stock, of which
2,813,285 were issued and outstanding on June 1, 1998. All of the issued and
outstanding shares of capital stock of the Company are duly authorized, validly
issued, fully paid, nonassessable and free of all preemptive rights. The Shares,
the Warrant and the Warrant Shares to be issued pursuant to this Agreement, when
issued in accordance with this Agreement and the Warrant, will be duly
authorized, validly issued, fully paid, nonassessable and free of all Liens
(other than those created by Investor in connection with the Stock Purchase
Agreement and the other agreements referred to therein) and preemptive rights.
(e) Consents and Approvals. No consent, approval,
authorization, license, permit or other action by, or filing with, any
governmental or regulatory authority is required in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby, except for such consents,
approvals, authorizations, licenses, permits, actions or filings as have been
obtained, taken or filed at or prior to the date hereof.
(f) Reports and Financial Statements. The Company has
previously furnished to Investor complete and accurate copies, as amended or
supplemented, of its (i) Quarterly Report on Form 10-QSB for the fiscal quarter
ended Xxxxx 00, 0000, (xx) Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997, each as filed with the Commission, and (iii) all other
reports filed by the Company under Section 13 of the Exchange Act with the
Commission since March 31, 1998 (such reports are collectively referred to
herein as the "Company Reports"). The Company Reports include all of the
documents required to be filed by the Company under the Exchange Act with the
Commission since December 31, 1997. As of their respective dates, the Company
Reports did not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements and unaudited interim financial
statements of the Company included in the Company Reports (i) comply as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect thereto, (ii)
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby (except as
may be indicated therein or in the notes thereto, and in the case of quarterly
financial statements, as permitted by Form 10-QSB under the Exchange Act), (iii)
fairly present the consolidated financial condition, results of operations and
cash flows of the Company as of the respective dates thereof and for the periods
referred to therein, and (iv) are consistent with the books and records of the
Company.
(g) Brokers' Fees. No broker, finder or similar agent has been
employed by or on behalf of the Company in connection with this Agreement or the
transactions contemplated hereby, and the Company has not entered into any
agreement or understanding of any kind with any person or entity for the payment
of any brokerage commission, finder's fee or any similar compensation in
connection with this Agreement or the transactions contemplated hereby.
(h) Disclosure. To the knowledge of the Company, no
representation or warranty of the Company in this Agreement and no information
contained in any other writing delivered by the Company to Investor pursuant to
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact required to make the statements
herein or therein not misleading. To the
knowledge of the Company, there is no fact that the Company has not disclosed to
Investor in writing that has had or, insofar as the Company can now foresee, may
have a material adverse effect on the ability of the Company to fully perform
this Agreement.
(i) Securities Laws. The offer, issue and sale of the Shares,
the Warrant and the Warrant Shares are and will be exempt from the registration
and prospectus delivery requirements of the Securities Act, and have been
registered or qualified (or are exempt from registration and qualification)
under the registration, permit or qualification requirements of all applicable
state securities laws.
Restrictions on Transfer of Shares Under Securities Laws.
(a) The Investor understands and agrees that the Shares, the
Warrant and the Warrant Shares have not been registered under the Securities Act
and that, accordingly, they will not be fully transferable except as permitted
under various exemptions contained in the Securities Act or upon satisfaction of
the registration and prospectus delivery requirements of the Securities Act. The
Investor acknowledges that it must bear the economic risk of its investment in
such securities for an indefinite period of time since they have not been
registered under the Securities Act and therefore cannot be sold unless they are
subsequently registered or an exemption from registration is available.
(b) The Investor hereby represents and warrants that it is
acquiring the Shares, the Warrant and the Warrant Shares for investment purposes
only, for its own account, and not as nominee or agent for any other Person, and
not with the view to, or for resale in connection with, any distribution thereof
within the meaning of the Securities Act.
(c) The Investor hereby agrees with the Company as follows:
(i) The certificates evidencing the Shares, the Warrant and the Warrant Shares,
and each instrument or certificate issued in transfer thereof, will bear
substantially the following legends:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933 and have been
taken for investment purposes only and not with a view to
the distribution thereof, and such securities may not be
sold or transferred unless there is an effective
registration statement under such Act covering such
securities or the issuer corporation receives an opinion of
counsel (which may be counsel for the issuer corporation)
stating that such sale or transfer is exempt from the
registration and prospectus delivery requirements of such
Act."
"The securities evidenced by this certificate are subject
to, and transferable only in accordance with, the provisions
of a Securities Purchase and Registration Rights Agreement
between Bentley International, Inc. (the "Company") and
Interiors, Inc. ("Interiors"). A copy of this agreement is
on file in the office of the Secretary of the Company."
"The securities evidenced by this certificate are subject to
the provisions of a Pledge Agreement between the Company and
Interiors. A copy of this agreement is on file in the office
of the Secretary of the Company."
"The securities evidenced by this certificate are subject to
the terms of the Bentley International, Inc. Voting Trust
Agreement No. 1. A copy of this agreement is on file in the
office of the Secretary of the Company."
(ii) The certificates representing the Shares, the Warrant and the Warrant
Shares and each instrument or certificate issued in transfer thereof, will also
bear any legend required under any applicable state securities law.
(iii) Absent an effective registration statement under the Securities Act,
covering the disposition of the Shares, the Warrant and the Warrant Shares, the
Investor will not sell, transfer, assign, pledge, hypothecate or otherwise
dispose of any or all of the Shares, the Warrant and the Warrant Shares without
first providing the Company with an opinion of counsel (which may be counsel for
the Company) to the effect that such sale, transfer, assignment, pledge,
hypothecation or other disposition will be exempt from the registration and the
prospectus delivery requirements of the Securities Act and the registration or
qualification requirements of any applicable state securities laws.
(iv) The Investor consents to the Company's making a notation on its records or
giving instructions to any transfer agent of the Shares, the Warrant and the
Warrant Shares in order to implement the restrictions on transfer set forth in
this subsection (c).
(d) The Investor hereby agrees with the Company that, without
the prior written consent of the Company, it will not sell or transfer any of
the Shares or the Warrant Shares to any Person who, immediately after such sale
or transfer, will own more than 4.9% of the issued and outstanding Common Stock.
Required Registration.
Commencing on the date hereof, if and whenever the Company shall prepare a
registration statement under the Securities Act on Form S-3 covering shares of
Common Stock, the Company agrees to give promptly written notice to Investor
that such registration is to be effected. The Company agrees to include in such
registration statement such shares of Registrable Securities for which it has
received a written request to register such shares by Investor within thirty
(30) days after the receipt of written notice from the Company.
Reporting Requirements Under the Exchange Act.
The Company shall timely file such information, documents and reports as the
Commission may require or prescribe under Section 13 of the Exchange Act. The
Company acknowledges and agrees that the purposes of the requirements contained
in this Section 7 are (a) to enable the Investor to comply with the current
public information requirement contained in paragraph (c) of Rule 144 should
Investor ever wish to dispose of any of the Shares or the Warrant Shares without
registration under the Securities Act in reliance upon Rule 144 (or any other
similar exemptive provision) and (b) to qualify the Company for the use of
registration statements on Form S-3.
Forms.
All references in this Agreement to particular forms of registration statements
are intended to include, and shall be deemed to include, references to all
successor forms which are intended to replace, or to apply to similar
transactions as, the forms herein referenced.
General Provisions.
Notices. All notices and other communications which are required or permitted to
be given pursuant to the terms of this Agreement must be delivered in accordance
with the provisions of Section 11.01 of the Stock Purchase Agreement.
Choice of Law. This Agreement shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts of law) of the State of
Missouri.
Severability. The parties hereto agree that the terms and provisions in this
Agreement are reasonable and shall be
binding and enforceable in accordance with the terms hereof and, in any event,
that the terms and provisions of this Agreement shall be enforced to the fullest
extent permissible under law. In the event that any term or provision of this
Agreement shall for any reason by adjudged to be unenforceable or invalid, then
such unenforceable or invalid term or provision shall not affect the
enforceability or validity of the remaining terms and provisions of this
Agreement, and the parties hereto hereby agree to replace such unenforceable or
invalid term or provision with an enforceable and valid arrangement which, in
its economic effect, shall be as close as possible to the unenforceable or
invalid term or provision.
Parties in Interest. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
permitted successors and assigns of the parties hereto, whether so expressed or
not.
Counterparts. This Agreement may be executed in any number of counterparts and
by different parties in separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Modification, Amendment and Waiver. This Agreement may be amended only in
writing with the written consent of Investor and the Company. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally or by course of dealing, but only by a statement in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, except to the extent provided in this Section 9.
Specifically, but without limiting the generality of the foregoing, the failure
of Investor at any time or times to require performance of any provision hereof
by the Company shall in no manner affect its right at a later time to enforce
the same. No waiver by any party of the breach of any term or provision
contained in this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
Further Assurances. The parties agree to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the intent
of this Agreement, and the Company specifically agrees to cooperate
affirmatively with Investor, if any, to the extent reasonably requested by
Investor, to enforce the rights of Investor and its assignees hereunder.
Headings. The headings of the Sections and paragraphs of this Agreement have
been inserted for convenience of reference only and do not constitute a part of
this Agreement.
Gender and Number. As used in this Agreement, the masculine, feminine or neuter
gender, and the singular or plural, shall be deemed to include the others
whenever and wherever the context so requires. Additionally, unless the context
requires otherwise, "or" is not exclusive.
Jurisdiction and Venue. Each party hereto irrevocably submits to the
jurisdiction of the courts of the State of Missouri and the United States
District Court for the Eastern District of Missouri for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Agreement and
the transactions contemplated hereby and to the laying of venue in any such
court. Each party hereto irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
[SIGNATURE PAGE OF SECURITIES PURCHASE
AND REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed on their behalf, as of
the day and year first above written.
COMPANY:
BENTLEY INTERNATIONAL, INC.,
a Missouri corporation
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
Address: Bentley International, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
INVESTOR:
INTERIORS, INC.,
a Delaware corporation
By:/s/ Xxx Xxxx
Name: Xxx Xxxx
Title: President
Address: Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000-0000
Exhibit A
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
BENTLEY INTERNATIONAL, INC.
THE WARRANT REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND NEITHER THIS WARRANT NOR ANY INTEREST THEREIN MAY BE
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF WITHOUT REGISTRATION UNDER
THAT ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED. THE WARRANT EVIDENCED BY THIS CERTIFICATE AND ANY
SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF ARE SUBJECT TO, AND
TRANSFERABLE ONLY IN ACCORDANCE WITH, THE PROVISIONS OF A SECURITIES PURCHASE
AGREEMENT BETWEEN THE COMPANY AND INVESTOR, ARE SUBJECT TO THE PROVISIONS OF A
PLEDGE AGREEMENT BETWEEN THE COMPANY AND INVESTOR, AND ARE SUBJECT TO THE TERMS
OF THE BENTLEY INTERNATIONAL, INC. VOTING TRUST AGREEMENT NO. 1, ALL DATED AS OF
THE SAME DATE AS THIS WARRANT. COPIES OF THE AFOREMENTIONED AGREEMENTS ARE ON
FILE IN THE OFFICE OF THE SECRETARY OF THE COMPANY.
No. W -- 1 Warrant to Purchase Three Hundred Thousand (300,000)
________ ___, 1998 Shares of Common Stock, $.18 Par Value
WARRANT TO PURCHASE COMMON STOCK
of
BENTLEY INTERNATIONAL, INC.,
a Missouri corporation
This certifies that, for value received, Interiors, Inc., a Delaware corporation
("Investor"), or registered assigns (Investor or any such assign being referred
to herein as "Holder") is entitled, subject to the terms set forth below, to
purchase from Bentley International, Inc., a Missouri corporation (the
"Company"), three hundred thousand (300,000) shares of Common Stock, $.18 par
value, of the Company (such class of stock being referred to herein as "Common
Stock"), as constituted on the date hereof (the "Issue Date"), upon surrender of
this Warrant, at the principal office of the Company referred to below, with the
subscription form attached hereto duly executed, and simultaneous payment
therefor in the consideration specified in Section 1 hereof, at the price of
$10.00 per share (the "Purchase Price"). The shares of Common Stock issued or
issuable upon exercise of this Warrant are sometimes referred to as the "Warrant
Shares." The term "Warrant" as used herein shall include this Warrant and any
warrants delivered in substitution or exchange therefor as provided herein. This
Warrant is issued pursuant to the terms of, and is the Warrant referenced in,
that certain Securities Purchase Agreement dated of even date herewith by and
between the Company and Investor.
Exercise and Payment of Purchase Price. This Warrant may be exercised at any
time or from time to time, on any business day, on or after the date hereof
through the earlier to occur of (i) ten (10) years from the date hereof or (ii)
sixty (60) days after the last reported sale price per share of Common Stock, as
reported on the OTC Bulletin Board or any stock exchange upon which the Common
Stock is subsequently listed, exceeds $15.00 per share (as such target price may
be adjusted for the effect of any stock split, stock dividend, recapitalization
or similar event effected by the Company after the date hereof), for all or part
of the full number of shares of Common Stock during the period of time called
for hereby, by surrendering it at the principal office of the Company, 0000
Xxxxxx Xxxx,
Xx. Xxxxx, Xxxxxxxx 00000, with the subscription form duly executed, together
with payment for the Warrant Shares payable in cash or cash equivalents. No
other form of consideration shall be acceptable for the exercise of this
Warrant. This Warrant shall be deemed to have been exercised immediately prior
to the close of business on the date of its surrender for exercise as provided
above, and the person entitled to receive the shares of Common Stock issuable
upon such exercise shall be treated for all purposes as the holder of such
shares of record as of the close of business on such date. As soon as
practicable on or after such date, and in any event within 10 days thereof, the
Company shall issue and deliver to the person or persons entitled to receive the
same a certificate or certificates for the number of shares of Common Stock
issuable upon such exercise. Upon any partial exercise, the Company will issue
and deliver to Holder a new Warrant or Warrants with respect to the shares of
Common Stock not purchased as a result of the partial exercise. No fractional
shares of Common Stock shall be issued upon exercise of this Warrant. In lieu of
any fractional share to which Holder would be entitled upon exercise, the
Company shall pay cash equal to the product of such fraction multiplied by the
Purchase Price.
Payment of Taxes. All shares of Common Stock issued upon the exercise of this
Warrant shall be duly authorized, validly issued and outstanding, fully paid and
non-assessable. Holder shall pay all taxes and other governmental charges that
may be imposed in respect of the issue or delivery thereof and any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of Common Stock in any name other than that of the
registered Holder of this Warrant surrendered in connection with the purchase of
such shares, and in such case the Company shall not be required to issue or
deliver any stock certificate until such tax or other charge has been paid or it
has been established to the Company's satisfaction that no tax or other charge
is due.
Transfer and Exchange. This Warrant and all rights hereunder are transferable,
in whole or in part in accordance with the terms hereof. If a transfer is
effected, this Warrant is transferable on the books of the Company maintained
for such purpose at its principal office referred to above by Holder in person
or by duly authorized attorney, upon surrender of this Warrant properly endorsed
and upon payment of any necessary transfer tax or other governmental charge
imposed upon such transfer. Each taker and holder of this Warrant, by taking or
holding the same, consents and agrees that this Warrant, when endorsed in blank,
shall be deemed negotiable and that when this Warrant shall have been so
endorsed, the Holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby or to the transfer
hereof on the books of the Company, any notice to the contrary notwithstanding;
but until such transfer on such books, the Company may treat the registered
Holder hereof as the owner for all purposes.
Certain Adjustments. Adjustment for Reorganization, Consolidation, Merger. In
case of any reorganization of the Company (or any other corporation, the stock
or other securities of which are at the time receivable on the exercise of this
Warrant) after the Issue Date, or in case, after such date, the Company (or any
such other corporation) shall consolidate with or merge into another corporation
(other than the merger of a wholly owned subsidiary into the Company), then and
in each such case Holder, upon the exercise hereof as provided in Section 1 at
any time after the consummation of such reorganization, consolidation, or
merger, shall be entitled to receive, in lieu of the stock receivable upon the
exercise of this Warrant prior to such consummation, the stock or other
securities or property to which such Holder would have been entitled upon such
consummation if such Holder had exercised this Warrant immediately prior
thereto.
Adjustments for Dividends in Common Stock. If the Company at any time or from
time to time after the Issue Date makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend payable
in additional shares of Common Stock, then and in each such event the Purchase
Price then in effect shall be decreased as of the time of such issuance or, in
the event such record date is fixed, as of the close of business on such record
date, by multiplying the Purchase Price then in effect by a fraction (1) the
numerator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (2) the denominator of which shall be the
total number of shares of Common Stock issued and outstanding immediately
prior to the time of such issuance or the close of business on such record date
plus the number of shares of Common Stock issuable in payment of such dividend;
provided, however, that if such record date is fixed and such dividend is not
fully paid on the date fixed therefor, the Purchase Price shall be recomputed
accordingly as of the close of business on such record date and thereafter the
Purchase Price shall be adjusted pursuant to this Section 4.2 as of the time of
actual payment of such dividends.
Stock Split and Reverse Stock Split. If the Company at any time or from time to
time after the Issue Date effects a subdivision of the outstanding Common Stock,
the Purchase Price then in effect immediately before that subdivision shall be
proportionately decreased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately increased.
If the Company at any time or from time to time after the Issue Date combines
the outstanding shares of Common Stock into a smaller number of shares, the
Purchase Price then in effect immediately before that combination shall be
proportionately increased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately decreased.
Each adjustment under this Section 4.3 shall become effective at the close of
business on the date the subdivision or combination becomes effective.
Accountants' Certificate as to Adjustment. In each case of an adjustment in the
shares of Common Stock receivable on the exercise of the Warrants, the Company
at its expense shall cause independent public accountants of recognized standing
selected by the Company (who may be the independent public accountants then
auditing the books of the Company) to compute such adjustment in accordance with
the terms of the Warrants and prepare a certificate setting forth such
adjustment and showing the facts upon which such adjustment is based. The
Company will forthwith mail a copy of each such certificate to each holder of a
Warrant at the time outstanding.
Loss or Mutilation. Upon receipt by the Company of evidence satisfactory to it
(in the exercise of reasonable discretion) of the ownership of and the loss,
theft, destruction or mutilation of any Warrant and (in the case of loss, theft
or destruction) of indemnity satisfactory to it (in the exercise of reasonable
discretion), and (in the case of mutilation) upon surrender and cancellation
thereof, the Company will execute and deliver in lieu thereof a new Warrant of
like tenor.
Reservation of Common Stock. The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the exercise of this Warrant, such number of its shares
of Common Stock as shall from time to time be sufficient to effect exercise of
this Warrant; and if at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect such exercise, the Company will
take such corporate action as may, in the opinion of its counsel, be necessary
to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
Notices of Record Date. In the event of (i) any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or (ii) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other corporation (other
than a merger of a wholly owned subsidiary into the Company), or any transfer of
all or substantially all of the assets of the Company to any other person or any
voluntary or involuntary dissolution, liquidation or winding up of the Company,
the Company shall mail to the Holder at least twenty (20) days prior to the
record date specified therein, a notice specifying (1) the date on which any
such record is to be taken for the purpose of such dividend or distribution and
a description of such dividend or distribution, (2) the date on which any such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up is expected to become effective, and (3) the date, if
any, that is to be fixed, as to when the holders of record of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock (or
other securities) for securities or other property deliverable upon such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up.
Investment Representation and Restriction on Transfer.
Securities Law Requirements.
By its acceptance of this Warrant, Holder hereby represents and warrants to
the Company that this Warrant and the Warrant Shares will be acquired for
investment for its own account, not as a nominee or agent, and not with a view
to the sale or distribution of any part thereof, and that it has no present
intention of selling, granting participations in or otherwise distributing the
same. By acceptance of this Warrant, Holder further represents and warrants that
it does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to any person, with respect to
this Warrant or the Warrant Shares.
By its acceptance of this Warrant, Holder understands that this Warrant is
not, and the Warrant Shares will not be, registered under the Securities Act of
1933, as amended (the "Act"), on the basis that the issuance of this Warrant and
the Warrant Shares are exempt from registration under the Act pursuant to
Section 4(2) thereof, and that the Company's reliance on such exemption is
predicated on Holder's representations and warranties set forth herein.
By its acceptance of this Warrant, Holder understands that this Warrant and
the Warrant Shares may not be sold, transferred, or otherwise disposed of
without registration under the Act, or an exemption therefrom, and that in the
absence of an effective registration statement covering this Warrant and the
Warrant Shares or an available exemption from registration under the Act, this
Warrant and the Warrant Shares must be held indefinitely. In particular, Holder
is aware that this Warrant and the Warrant Shares may not be sold pursuant to
Rule 144 promulgated under the Act unless all of the conditions of Rule 144 are
satisfied. Among the conditions for use of Rule 144 are the availability of
current information about the Company to the public, prescribed holding periods
which will commence only upon Holder's payment for the securities being sold,
manner of sale restrictions, volume limitations and certain other restrictions.
By its acceptance of this Warrant, Holder represents and warrants that, in the
absence of an effective registration statement covering this Warrant or the
Warrant Shares, it will sell, transfer or otherwise dispose of this Warrant and
the Warrant Shares only in a manner consistent with its representations and
warranties set forth herein and then only in accordance with the provisions of
Section 8.1(d).
By its acceptance of this Warrant, Holder agrees that in no event will it
transfer or dispose of the Warrant or the Warrant Shares other than pursuant to
an effective registration statement under the Act, unless and until (i) Holder
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
disposition, and (ii) if requested by the Company, at the expense of the Holder
or transferee, it shall have furnished to the Company an opinion of counsel,
reasonably satisfactory to the Company, to the effect that (A) such transfer may
be made without registration under the Act and (B) such transfer or disposition
will not cause the termination or the non-applicability of any exemption to the
registration and prospectus delivery requirements of the Act or to the
qualification or registration requirements of the securities laws of any other
jurisdiction on which the Company relied in issuing this Warrant or the Warrant
Shares.
Legends; Stop Transfer. All certificates evidencing the Warrant Shares shall
bear legends in substantially the following forms:
"The securities represented by this certificate have not been registered under
the Securities Act of 1933. These securities have been acquired for investment
and not with a view to distribution and may not be offered for sale, sold,
pledged or otherwise transferred in the absence of an effective registration
statement for such securities under the Securities Act of 1933 or an opinion of
counsel reasonably satisfactory in form and content to the issuer that such
registration is not required under such Act."
"The securities represented by this certificate are subject to, and transferable
only in accordance with, the provisions of a Securities Purchase Agreement
between issuer and Interiors, Inc."
"The securities represented by this certificate are also subject to the
provisions of a Pledge Agreement between issuer and Interiors, Inc."
"The securities represented by this certificate are subject to the terms of The
Bentley International, Inc. Voting Trust Agreement No. 1."
"Copies of the aforementioned agreements are on file in the Office of the
Secretary of the issuer."
The certificates evidencing the Warrant Shares shall also bear any legend
required by any applicable state securities law.
In addition, the Company shall make, or cause its transfer agent to make, a
notation regarding the transfer restrictions of this Warrant and the Warrant
Shares in its stock books, and this Warrant and the Warrant Shares shall be
transferred on the books of the Company only if transferred or sold pursuant to
an effective registration statement under the Act covering the same or pursuant
to and in compliance with the provisions of Section 8.1(d).
Notices. All notices and other communications from the Company to the Holder of
this Warrant shall be mailed by first-class registered or certified mail,
postage prepaid, to the address furnished to the Company by Holder.
Change; Waiver. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought.
Headings. The headings in this Warrant are for purposes of convenience in
reference only, and shall not be deemed to constitute a part hereof.
Governing Law. This Warrant shall be construed and enforced in accordance with
and governed by the internal laws, and not the law of conflicts, of the State of
Missouri.
Jurisdiction and Venue. Each party hereto irrevocably submits to the
jurisdiction of the courts of the State of Missouri and the United States
District Court for the Eastern District of Missouri for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Warrant and
the transactions contemplated hereby and to the laying of venue in any such
court. Each party hereto irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
[SIGNATURE PAGE TO WARRANT]
BENTLEY INTERNATIONAL, INC.,
a Missouri corporation
By:______________________________________
Xxxxx X. Xxxxxx, President
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned, registered owner of this Warrant, irrevocably exercises this
Warrant and purchases ____________ of the number of shares of Common Stock, $.18
par value, of BENTLEY INTERNATIONAL, INC., a Missouri corporation, purchasable
with this Warrant, and herewith makes payment therefor, all at the price and on
the terms and conditions specified in this Warrant.
DATED:______________
(Signature of Registered Owner)
(Street Address)
(City) (State) (Zip)
