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EXHIBIT 10.33
UNIT PURCHASE AGREEMENT
This Unit Purchase Agreement (this "AGREEMENT") is made and entered into
as of ____________________, 1996, by and between Golf One Industries, Inc., a
Delaware corporation (the "COMPANY"), and the Purchaser identified on the
signature page ("PURCHASER").
1. Purchase and Sale.
(a) On the terms and subject to the conditions of this Agreement,
Purchaser hereby purchases from the Company, the Company hereby sells to the
Purchaser, the number of Units set forth adjacent to the Purchaser's name on
the signature page of this Agreement. Each Unit consists of a promissory note
to the Company ( a "Note") in the principal amount of $25,000 and warrants (the
"Warrants") to purchase 6,500 shares of the Common Stock of the Company (the
"Warrant Shares"). The Units, the Notes the Warrants and the Warrant Shares are
hereby sometime collectively referred to as the "Securities."
(b) The purchase price for each Unit shall be $25,000 which has been
paid in cash, check or by wire transfer to the Company concurrently herewith.
(c) The Note shall be substantially in the form of Exhibit "A" to
this Agreement. The Warrants shall be substantially in the form of Exhibit "B"
to this Agreement.
2. Representations and Warranties of the Company. The Company represents
and warrants to the Purchaser as follows:
(a) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware;
(b) The Company has the corporate power and authority to perform its
obligations under this Agreement, and to execute and deliver this Agreement and
the Note. The Note constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with the terms, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditor's right
generally, usury laws (see Section 5 of this Agreement) or the availability of
equitable remedies; and
(c) The execution and delivery of this Agreement does not, and
compliance by the Company with the provisions hereof will not, conflict with or
result in a
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breach or default under any note, bond, mortgage, license, agreement or other
instrument or obligation to which the Company is a party or by which it may be
bound.
3. Representations and Warranties of Purchaser. Purchaser represents and
warrants to the Company as follows:
(a) Purchaser is an "accredited investor" within the meaning of
Regulation D of the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "SECURITIES ACT"); as such, (i) if Purchaser is an
individual, Purchaser has either: (A) a net worth, or a joint net worth with
Purchaser's spouse, at the date hereof in excess of $1,000,000; or (B) income in
excess of $200,000 in each of the two most recent years, or joint income with
Purchaser's spouse in excess of $300,000 in each of those years, with a
reasonable expectation of reaching the same income in the current year; (ii) if
Purchaser is a corporation or partnership, either: (A) it was not formed for the
specific purpose of acquiring the Note and has total assets in excess of
$5,000,000; or (B) all of the equity owners of such corporation or partnership
are individuals who meet their requirements in (i) above; or (iii) Purchaser is
either: (A) a broker/dealer registered under Section 15 of the Securities
Exchange Act of 1934; (B) an insurance company as defined under Section 2(13) of
the Securities Act; (C) an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary (as defined in Section 3(21) of such Act) which is
either a bank, savings and loan association, insurance company or registered
investment advisor; or (D) a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees if the plan has total
assets in excess of $5,000,000.
(b) Purchaser understands that the Company is a start-up corporation
with no assets or operations, except that the Purchaser has the right to acquire
all of the outstanding Common Stock of Rhino Marketing, Inc. pursuant to that
certain Stock Agreement with the shareholder of Rhino; Purchaser further
understands that an investment in the Securities involves a high degree of risk,
and Purchaser is able to bear the risk of an entire loss of his or her
investment in the Securities; Purchaser has such knowledge and experience in
financial business matters that he or she is capable of evaluating the merits
and risks of the investment in the Securities and in protecting his or her own
interest in connection with this transaction.
(c) Purchaser understands that the Securities have not been registered
under the Securities Act or under any state securities laws. Purchaser is
familiar with the provisions of the Securities Act and Rule 144 thereunder and
understands that the restrictions on transfer placed upon Purchaser pursuant to
Section 4. of this Agreement may result in Purchaser being required to hold the
Securities for an indefinite period of time.
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(d) Purchaser is acquiring the Securities for Purchaser's own account,
and not as a nominee or agent for others, and not with a view to resale or
distribution of any part thereof, and Purchaser has no present intention of
selling or distributing the Securities.
(e) Purchaser believes that it has received all the information it
considers necessary or appropriate for deciding whether to purchase the
Securities. Purchaser further represents that it has had an opportunity to ask
questions and receive answers from Company and its officers and directors
regarding the terms and conditions of the offering and the business, prospects
and financial condition of the Company.
(f) Purchaser is a resident of the state set forth in Purchaser's
address on the signature page of this Agreement.
4. Restrictions on Transfer.
Purchaser acknowledges and agrees that the Securities may not be sold,
transferred, assigned, pledged, hypothecated or otherwise disposed of except
pursuant to an effective registration statement under the Securities Act or
unless the Company shall have received a written opinion of counsel, in form and
substance satisfactory to the Company and its counsel, to the effect that the
disposition may be effected without registration under the Securities Act. As a
further condition to any such disposition, except in the event that such
disposition is made pursuant to an effective registration statement under the
Securities Act, if in the reasonable opinion of counsel to the Company any
disposition of the Securities by the contemplated transferee thereof would not
be exempt from the registration and prospectus delivery requirements of the
Securities Act, the Company may require the contemplated transferee to furnish
the Company with an investment letter setting forth such information and
agreements as may be reasonably requested the Company to ensure compliance by
such transferee with the Securities Act.
5. Miscellaneous Provisions.
(a) NOTICES. All notices, requests and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service or by United States first class,
registered or certified mail, postage prepaid, addressed to the party at the
address set forth on the signature page of this Agreement. Any Notice, sent
other than by registered or certified mail, shall be effective when received;
if sent by registered or certified mail it shall be effective upon deposit in
the United States mails. Either party may from time to time change its address
for further Notices hereunder by giving notice to the other party in the manner
prescribed in this Section.
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(b) ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party to this Agreement.
(c) SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors, heirs
and personal representatives.
(d) GOVERNING LAW. This Agreement and the legal relationship between
the parties hereto shall be governed by and be construed in accordance with the
internal laws of the State of California without taking into account provisions
regarding choice of law.
(e) CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS HEREOF, this Agreement has been made and entered into as of
the date and year first above written.
GOLF ONE INDUSTRIES, INC.
By:
Its:
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
PURCHASER
By
Address:
Number of Units:
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GOLF ONE INDUSTRIES, INC.
EXHIBIT "A" TO UNIT PURCHASE AGREEMENT
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT SOLD, TRANSFERRED, PLEDGED, ASSIGNED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL PURCHASER OF THE SECURITIES, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER.
ACQUISITION NOTE
Santa Maria, California , 1996
FOR VALUE RECEIVED, GOLF ONE INDUSTRIES, INC., a Delaware corporation (the
"COMPANY"), hereby promises to pay to ______________, or registered assigns (the
"HOLDER"), in lawful money in the United States of America, the sum of
_______________________ (______), together with simple interest on the unpaid
balance payable on the maturity date at the rate of eleven percent (11%) per
annum.
Maturity Date. The earlier to occur of: (i) the closing of the Company's
acquisition of 100% of the stock of Rhino Marketing, Inc., a California
corporation; and (ii) November 8, 1996.
Payments. All payments on this Note shall be made to the Holder at the
address set forth on the Unit Purchase Agreement or such other address within
the United States as the Holder shall from time to time notify the Company in
writing.
Prepayment. This Note may be prepaid at any time without penalty or
premium.
Governing Law. This Note and the legal relations between the Holder and the
Company shall be governed by and construed in accordance with the internal laws
of the State of California without taking into account provisions regarding
choice of law.
GOLF ONE INDUSTRIES, INC.
By:
Its:
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GOLF ONE INDUSTRIES, INC.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT SOLD, TRANSFERRED, PLEDGED, ASSIGNED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL PURCHASER OF THE SECURITIES, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER.
ACQUISITION NOTE
Santa Maria, California , 1996
FOR VALUE RECEIVED, GOLF ONE INDUSTRIES, INC., a Delaware corporation (the
"COMPANY"), hereby promises to pay to ______________, or registered assigns (the
"HOLDER"), in lawful money in the United States of America, the sum of
_______________________ (______), together with simple interest on the unpaid
balance payable on the maturity date at the rate of eleven percent (11%) per
annum.
Maturity Date. The earlier to occur of: (i) the closing of the Company's
acquisition of 100% of the stock of Rhino Marketing, Inc., a California
corporation; and (ii) November 8, 1996.
Payments. All payments on this Note shall be made to the Holder at the
address set forth below or such other address within the United States as the
Holder shall from time to time notify the Company in writing.
Prepayment. This Note may be prepaid at any time without penalty or
premium.
Governing Law. This Note and the legal relations between the Holder and the
Company shall be governed by and construed in accordance with the internal laws
of the State of California without taking into account provisions regarding
choice of law.
GOLF ONE INDUSTRIES, INC.
By:
Its:
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UNIT OFFERING
TERMS OF THE
OFFERING: 24 Units, each Unit consisting of a promissory note in the
amount of $25,000 and warrants (the "Warrants") to purchase
6,500 shares of the common stock (the "Common Stock") of
Golf One, Inc., a Delaware corporation (the "Company") or
"Golf"
GROSS PROCEEDS: Maximum - $800,000; Minimum - $25,000
PURPOSE OF
OFFERING: The Company has entered into an agreement (the "Rhino
Acquisition Agreement") to acquire one hundred percent
(100%) of the outstanding stock of Rhino. Rhino is a newly
formed Delaware corporation engaged in the recreational golf
industry. A description of Golf, Rhino and its anticipated
operations is set forth in detail in the Company's Business
Plan of November 1, 1995 (the "Plan") provided herewith as
Exhibit "A." The Rhino Acquisition Agreement contemplates
that the Company will raise not less than $2,000,000 through
the sale of equity securities. The Company intends to obtain
such proceeds through a private placement offering of Common
Stock (the "PPO") as promptly as practicable following
completion of this Offering.
USE OF PROCEEDS: The proceeds from the Unit Offering may be used for. (i) an
interim secured loan to Rhino in the amount of $200,000;
(ii) additional financing to Rhino as Golf management deems
necessary; (iii) offering costs anticipated not to exceed
$75,000; (iv) legal, accounting, commitment and investment
banking fees; and (v) other transaction costs and working
capital.
TERMS OF THE
ACQUISITION NOTE:
PRINCIPAL
AMOUNT: $25,000 per Acquisition Note.
INTEREST: 11% per annum, simple interest or the maximum interest rate
permitted by applicable law, payable on the maturity date.
MATURITY: The earlier to occur of: (i) the closing of the PPO; or,
(ii) November 8, 1996.
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WARRANTS: The Warrants will be exercisable of any time on or prior to
December 31, 1998 at a per share price equal to the lesser
of $2.00 or 60% of the price at which the Common Stock is
sold in the PPO. The price per share for the Company's
private placement is currently anticipated at $3.33 which
would result in an exercise price of $2.00.
REGISTRATION
RIGHTS: Each purchaser will be entitled to "piggyback" registration
rights with respect to the Common Stock acquired upon
expense of the Warrants (the "Warrant Stock"). The Business
Plan contemplates that the Company will effect an initial
public offering approximately twelve months following the
closing of the PPO. The Company would, subject to approval
of the underwriters and upon the request of a purchaser,
include the Common Stock underlying the Warrant in the
registration statement for the Offering. No assurance can be
given that the Company will complete a public offering.
INVESTOR
QUALIFICATIONS: Units will be sold only to "accredited investors" under
Regulation D of the Securities and Exchange Commission. Each
purchaser will be required to execute the acknowledgment
attached hereto as Exhibit "B."
STATUS OF
SECURITIES: The Acquisition Note and the Warrants will be "restricted
securities" under the Securities Act of 1933, as amended,
and will be subject to certain restrictions on transfer.
ADDITIONAL
CONSIDERATION: Each Unit purchaser will receive a complete set of custom
fitted Rhino irons and xxxxx, and a three volume video set
of Xxx Xxxx'x "Automatic Golf."
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GOLF ONE, INC.
NEITHER THESE WARRANTS NOR THE COMMON STOCK ISSUABLE UPON THEIR EXERCISE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY
APPLICABLE STATE SECURITIES LAWS BY REASON OF EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND SUCH LAWS, AND MAY NOT BE TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
Warrants Certificate Number:
GOLF ONE, INC.
CLASS A COMMON STOCK PURCHASE WARRANTS
Golf One, Inc. a Delaware corporation (the "Company"), certifies that for value
received _____________, is the registered holder (the "Holder") of _____________
(________) Class A Common Stock Purchase Warrants of the Company (the
"Warrants"). Each Warrant entitles the Holder to purchase from the Company, at
any time prior to the Expiration Date (as hereinafter defined), one share of the
Common Stock of the Company (subject to adjustment as hereinafter provided) (the
"Conversion Shares") at ________, on the terms and conditions hereinafter
provided. This Warrant is issued pursuant to a Unit Purchase Agreement (the
"Unit Purchase Agreement") between the Company and the original Holder thereof.
1. Exercise
1.1 The "Exercise Price" shall be $2.00 per share provided, however,
that if the Company sells shares of its Common Stock in one or a series of
related transactions in which the aggregate sales price exceeds $1,500,000 at
any time after November 30, 1995 and on or prior to March 31, 1996, and the
average sale price per share (the "Sales Price") is less then $3.33, the
Exercise Price shall be reduced to 60% of the Sales Price.
1.2 Time of Exercise. The Warrants may be exercised in whole or in part
at any time on or before December 31, 1998 (the "Expiration Date"), after which
time the Warrants shall expire and be of no further force or effect.
1.3 Manner of Exercise. The Warrants are exercisable by delivery to the
Company of the following (the "Exercise Documents") (i) this Certificate (ii) a
written notice of election to exercise the Warrants; (iii) a certificate
confirming that the representations and warranties of the original holder of the
Warrants in the Unit Purchase Agreement are true and
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correct as of the date of exercise; and (iv) the Purchase Price (and any
applicable transfer taxes),
Within 30 days Mowing receipt of the foregoing, the Company shall
execute and deliver to the Holder a certificate or certificates representing the
aggregate number of Conversion Shares purchased by the Holder. No fractional
shares of Common Stock or scrip shall be issued upon exercise of the Warrants.
If more than one Warrant is exercised at any one time by the Holder, the number
of full shares of Common Stock issuable upon exercise thereof shall be computed
on the basis of the aggregate number of the Warrants so exercised. If the
computation for determining the number of shares of Common Stock issuable upon
exercise of the Warrants shall result in other than a whole number, the Company
shall pay to the Holder an amount equal to the fair value of the fractional
share, such certificate or certificates shall be deemed to have been issued and
the Holder shall be deemed to become a record holder of such Conversion Shares
as of the date of receipt by the Company of all the Exercise Documents. If less
than all of the Warrants evidenced by this Certificate are exercised, the
Company will, upon exercise, execute and deliver to the Holder a new certificate
evidencing the Warrants not so exercised.
1.4 Compliance with Applicable Federal and State Securities Laws.
Notwithstanding any provision of this Certificate to the contrary, the Company
shall not be obligated to issue Conversion Shares upon exercise of the Warrants
if such issuance would be a violation of federal or applicable state securities
laws.
2. Adjustments of Exercise Price and Number and Kind of Conversion Shares
2.1 In the event that the Company shall at any time hereafter (i) pay a
dividend in Common Stock or securities convertible into Common Stock; (ii)
subdivide or split its outstanding Common Stock; (iii) combine its outstanding
Common Stock into a smaller number of shares; or (iv) issue additional shares of
Common Stock without consideration in a transaction substantially similar to or
having an effect of the transactions described in clauses (i), (ii) and (iii)
above, then the number of Conversion Shares to be issued immediately after the
occurrence of any such event shall be adjusted so that the Holder thereafter may
receive the number of shares of Common Stock it would have owned immediately
following such action if it had exercised the Warrants immediately prior to such
action and the Purchase Price shall be adjusted to reflect such proportionate
increases or decreases in the number of Conversion Shares.
2.2 In case of any reclassification of the outstanding shares of Common
Stock the (other than a change covered by Section 2.1 hereof or a change which
solely affects the par value of such shares) or in the case of any merger or
consolidation or merger in which the Company is not the continuing corporation
and which results in any reclassification or capital reorganization of the
outstanding shares), the Holder shall have the right thereafter (until the
Expiration Date) to receive upon the exercise hereof, for the same aggregate
Purchase Price payable hereunder immediately prior to such event, the kind and
amount of shares of stock or other securities or property receivable upon such
reclassification, capital reorganization, merger or consolidation, by a Holder
of the number of shares of Common Stock obtainable upon the exercise of the
Warrants immediately prior to such event; and if any reclassification also
results in a change in shares covered by Section 2.1, then such adjustment shall
be made pursuant to both this Section 2.2 and Section 2.1. The provisions of
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this Section 2.2 shall similarly apply to successive reclassifications, capital
reorganizations and mergers or consolidations, sales or other transfers.
3. Transfer. Subject to compliance with applicable securities laws and
the conditions set forth in the Unit Purchase Agreement, the Warrants are
transferable, on the books of the Company maintained for such purpose by Holder
in person, or by duly authorized attorney, upon surrender of this Certificate
properly endorsed and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer. If less than all of the Warrants
evidenced by this Certificate are transferred, the Company will, upon transfer,
execute and deliver to the Holder a new certificate evidencing the Warrants not
so transferred.
4. Registration Rights.
4.1 If the Company shall determine to register any Common Stock under
the Securities Act of 1933 (the "Securities Act") for sale in connection with a
public offering of Common Stock for cash, the Company will give written notice
thereof to the Holder and will use its best efforts to effect the registration
under the Securities Act of all of the Conversion Shares which Holder may
request in a writing delivered to the Company within 15 days after the notice
given by the Company; provided, however, if the representative of the
underwriters of the offering shall refuse in writing to include in such offering
all of the shares requested by included by the Company and others, the shares to
be included shall be allocated first to the Company and then among the others
based on the respective number of shares of Common Stock held by such persons.
If the Company decides not to, and does not, file a registration statement with
respect to such registration, or thereafter determines to withdraw the same
before the effective date thereof, the Company will promptly so inform the
Holder, and the Company will not be obligated to complete the registration of
the Conversion Shares included therein.
4.2 The Holder agrees not to effect any public sale or distribution of
Conversion Shares (regardless of whether the Conversion Shares are included in
the registration) during the period beginning ten days prior to and ending 180
days (or such shorter period as may be permitted by the representative of the
underwriters) after the effective date of any registration statement filed by
the Company for a public offering of any of its securities (except as part of
such registration). This covenants shall survive the exercise of the Warrants.
4.3 The Holder may not include Conversion Shares in any registration
statement unless the Holder (i) if the offering is being underwriting, agrees
to sell such Conversion Shares on the basis provided in any underwriting
arrangement approved by the Company and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting, and furnishes to
the Company such information as the Company may require from the Holder for
inclusion in the registration statement (and the prospectus included therein).
4.4 If the Holder desires to include in a registration statement
Conversion Shares which have not been issued, the Holder shall exercise such
portion of the Warrants as may be necessary to provide Holder with such
Conversion Shares provided that such exercise may he made contingent upon the
closing of the sale of Conversion Shares pursuant to such registration.
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4.5 The Company shall bear and pay all expenses incurred in effecting
any registration pursuant to this Section 4, including without limitation, all
registration and filing fees, printing expenses, expenses of compliance with
blue sky laws, fees and disbursements of counsel for the Company and expenses of
any audits incidental to or required by any such registration; provided that the
Holder shall bear any legal expenses for its own counsel and underwriting
discounts or broker commissions relating to the sale of its Conversion Shares.
4.6 The Company shall not be obligated to offer to the Holder the right
to include Conversion Shares in a registration statement pursuant to this
Section 4 more than one time; provided, however that it shall be deemed that the
Company has not made such an offer to the Holder if either (i) the Holder has
requested that its Conversion Shares be included in a registration statement and
the representative of the underwriters has not permitted the inclusion of all of
such Shares or (ii) the registration statement related to such Conversion Shares
shall not become effective.
5. Reservation of Shares. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, such
number of shares of Common Stock as shall from time to time be issuable upon
exercise of the Warrants. If at any time the number of authorized but unissued
shares of Common Stock shall not be sufficient to permit the exercise of the
Warrants, the Company shall promptly seek such corporate action as may necessary
to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
6. Notice and Addresses. All notices, requests, consents and other
communications required hereunder shall be in writing and by first class mail or
by registered or certified mail, postage prepaid, return receipt requested, and
(other than in connection with the exercise of the Warrants) shall be deemed to
have been duly made when deposited in the mails upon mailing by first class mail
or by registered or certified mail, postage prepaid, return receipt requested:
if addressed to the Holder, at the last address of such Holder on the books of
the Company; and if addressed to the Company at 0000 Xxxxxxx Xxxxx Xxxxx Xxxxx,
Xxxxxxxxxx 00000 or such other address as the Company may designate in writing.
7. No Rights as Shareholder. The Holder shall have no rights as a
shareholder of the Company with respect to the Conversion Shares until the
receipt by the Company of all of the Exercise Documents. Except as may be
provided by Section 2 of this Certificate, no adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date the Company receives all of the Exercise Documents.
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IN WITNESS WHEREOF, the Company has caused this Certificate to be signed by
its duly authorized officer on _____________, 1996.
GOLF ONE, INC.
By:__________________________
Its:_________________________
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