EXHIBIT 4.4
FUNDING COMMITMENT LETTER AND SUBSCRIPTION AGREEMENT
This Funding Commitment Letter and Subscription Agreement ("Letter") is
executed on this 15th Day of February, 2000, by and between Teakwood Ventures,
LLC "Subscriber," a Delaware LLC, and Divot Golf Corporation (the "Company") a
Delaware corporation. This Letter is intended to set forth the definitive
agreement between the parties concerning the purchase of Divot common stock by
Subscriber.
1. SUBSCRIPTION. Subscriber hereby subscribes to purchase the following
Units of shares of Company's common stock (the "Divot Common") in the
manner set forth herein:
A. Unit One: Two Million Dollars ($2,000,000.00) of Divot Common,
priced at Seventeen Point Eight Two Cents ($.1782) per share
(11,223,334 shares), based on a Market Capitalization for the
Company in the amount of $28,000,000.00. Subscriber hereby
subscribes for the purchase of Unit One on or before March 30,
2000.
B. Unit Two: Two Million Dollars ($2,000,000.00) of Divot Common,
priced at Seventeen Point Eight Two Cents ($.1782) per share
(11,223,334 shares), based on a Market Capitalization for the
Company in the amount of $28,000,000.00. Subscriber hereby
subscribes for the purchase of Unit Two on or before June 30,
2000.
C. Unit Three: Six Million Dollars ($6,000,000.00) of Divot Common,
priced at Thirty One Point Eight Two Cents ($.3182) per share
(18,856,065 shares), based on a Market Capitalization for the
Company in the amount of $50,000,000.00. Subscriber hereby
subscribes for the purchase of Unit Three on or before September
30, 2000.
This share price set forth in this Subscription shall be subject to
modification in accordance with Section 2 of this Letter. All funds
shall be paid via wire transfer in accordance with instructions to be
provided by the Company in the amount equal to the purchase price for
the Unit(s) hereby subscribed for. A Unit will be deemed purchased when
payment is made for such Unit in the amount and in the manner set forth
in this Agreement.
2. CONDITIONS TO SUBSCRIPTION. The Subscription set forth in Section 1 of
this Agreement is conditioned upon the following covenants, agreements,
representations, and warranties of the Company, which shall remain in
full force and effect during the term of this letter (unless such
covenant is to remain in effect for a longer period in accordance with
its terms):
(a) Repricing Limit Loss: The Company hereby agrees that if the per
share market price of Divot Common falls below an amount
equivalent to a total market capitalization of $200,000,000.00,
and such reduction in market price
remains in effect on any of the dates Subscriber has subscribed
for the purchase of a Unit, the share price effective for the
purchase of such Unit shall be adjusted by the same percentage of
the loss in value of the Divot Common.
(b) REGISTRATION OF SHARES: When purchased in accordance with this
Subscription, the Divot Common shall be registered pursuant to the
filing by the Company of an SB-2 Registration Statement with the
Securities and Exchange Commission.
(c) TRADEABILITY: When purchased in accordance with this Subscription,
the Divot Common shall be freely tradable by the Subscriber upon
the effective date of the SB-2.
(d) SHARE CERTIFICATES: When purchased by Subscriber in accordance
with this Letter, the Company shall issue share certificates
representing the purchased Divot Common in accordance with the
Subscriber's instructions.
(e) SEATS ON BOARD OF DIRECTORS: The Company shall make two (2)
outside seats available for the Subscriber's appointees on the
Company's Board of Directors which shall continue to consist of
five (5) members. The Company shall undertake all steps necessary
to ensure the election of the Subscriber appointees to the Company
Board at the next annual meeting of Company shareholders. In
addition, the Company hereby confirms the appointment of Aditha
Reksono as a Special Advisor to the Company's International
Advisory Board.
(f) BUSINESS DEVELOPMENT: The Company shall actively seek out and
include the involvement of Subscriber in all global business
development activities, including international investments and
strategic partnerships.
(g) NO COMMISSIONS: The Company hereby represents and warrants that no
commissions shall be paid to any individual or entity in
connection with Subscriber's investment as described in this
Letter.
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER: As an inducement to the
Company to offer to the Subscriber the Divot Common for which it has
subscribed, the Subscriber hereby represents and warrants to the
Company as follows, such representations and warranties to survive the
Subscriber's becoming a shareholder of the Company
(a) This Letter constitutes the valid and legally binding obligation
of the Subscriber, enforceable against the Subscriber in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization and other similar laws
now or hereafter in effect relating to creditors' rights
generally.
(b) The execution, delivery and performance by the Subscriber of this
Letter and the transactions contemplated hereby and thereby will
not constitute a breach of any terms or provisions of, or a
default under, (i) any outstanding indenture, mortgage, loan
agreement or other similar contract or agreement to which the
Subscriber or any of the Subscriber's affiliates is a party or by
which the Subscriber or any such affiliate or its or their
property is bound, (ii) if the Subscriber is a corporation or
other legal entity, its Certificate or Articles of Incorporation
or By-Laws or other constituent documents, (iii) any law, rule or
regulation, or (iv) any order, writ, judgment or decree having
applicability to it.
(c) No consent, license, approval or authorization of any governmental
body, authority, bureau or agency is required on the part of the
Subscriber or any of the Subscriber's affiliates in connection
with the execution, delivery and performance of this Letter, or
the consummation of the transactions contemplated hereby or
thereby.
(d) The Subscriber has received and read carefully all documents
furnished to the Subscriber relating to and describing the Company
and the Divot Common. The Subscriber has had access to all
additional information necessary to verify the accuracy of the
information furnished to it, and has taken all the steps necessary
to evaluate the merits and risks of an investment in the Company.
The Subscriber understands that the Business Plan contains the
reasonable estimates of Company's management and that no assurance
can be given that the financial projections can be met. Subscriber
understands that these securities are highly speculative.
(e) The Subscriber is an "Accredited Investor" as that term is defined
in Section 501(a) of Regulation D promulgated under the Securities
Act of 1933, as amended.
4. GOVERNING LAW. This Letter shall be governed by and construed in
accordance with the laws of the State of New York as if performed
entirely within such state, without giving effect to conflicts of law.
5. NOTICES. Any notice or communication required under this Agreement to
be made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by registered
U.S. Mail with confirmed receipt (postage prepaid), or delivered by
overnight courier to the address of the party as set forth below:
(a) IF TO THE COMPANY: Divot Golf Corporation
---------------------- Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 00-X
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Chairman & CEO
(b) IF TO THE SUBSCRIBER: Teakwood Ventures, LLC
------------------------- 000 0xx Xxxxxx, Xxxxx 000,
Xxx Xxxx, XX 00000
Attention: Aditha Reksono
6. TITLES AND CAPTIONS: All article and section titles or captions in this
Agreement are for convenience only. They shall not be deemed a part of
this Agreement, and in no way define, limit, extend, or describe the
scope or intent of any of its provisions.
7. BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the Parties and their successors, legal representatives, and
permitted assigns.
8. ENTIRE AGREEMENT: This Letter constitutes the entire agreement between
the parties hereto, and supersedes all prior and contemporaneous
agreements, arrangements, negotiations, and understandings between the
parties hereto relating to the subject matter hereof. There are no
other understandings, statements, promises or inducements between the
parties, oral or otherwise, contrary to the terms of this Letter. No
representations, warranties, covenants, or conditions, express or
implied, whether by statute or otherwise, other than as set forth
herein have been made by any party hereto.
IN WITNESS WHEREOF, the parties have executed this Funding Commitment
Letter and Subscription Agreement as of the date first set forth above.
DIVOT GOLF CORPORATION TEAKWOOD VENTURES, LLC
/s/ Xxxxxx X. Xxxxxxx /s/ Aditha Reksono
--------------------- ------------------
Xxxxxx X. Xxxxxxx Aditha Reksono
Chairman and C.E.O. Managing Director
