Exhibit 10.1
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY BE REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
VOID AFTER 5:00 P.M., NEW YORK TIME, ON MARCH 7, 1997 OR IF NOT A BUSINESS DAY,
AS DEFINED HEREIN, AT 5:00 P.M., NEW YORK TIME, ON THE NEXT FOLLOWING BUSINESS
DAY.
NO. MC-1
WARRANT TO PURCHASE SHARES OF
COMMON STOCK
OF
FAMILY GOLF CENTERS, INC.
TRANSFER RESTRICTED -- SEE SECTION 6.02
____________ SHARES
This certifies that, for good and valuable consideration, Monness, Crespi,
Xxxxx & Co., Inc., and its registered, permitted assigns (collectively, the
"WARRANTHOLDER"), is entitled to purchase from Family Golf Centers, Inc., a
corporation incorporated under the laws of the State of Delaware (the
"COMPANY"), subject to the terms and conditions hereof, at any time on or after
March 7, 1996, and before 5:00 P.M., New York time, on March 7, 1997 (or, if
such day is not a Business Day, at or before 5:00 P.M., New York time, on the
next following Business Day), the number of fully-paid and non-assessable
shares of common stock (par value $.01 per share) of the Company stated above
at the Exercise Price. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment as provided in Article III hereof.
ARTICLE I
Section 1.01: Definition of Terms. As used in this Warrant, the
following capitalized terms shall have the following respective meanings:
(a) Business Day: A day other than a Saturday, Sunday or other day on
which banks in the State of New York are authorized by law to remain closed.
(b) Common Stock: Common Stock, par value $.01 per share, of the
Company.
(c) Common Stock Equivalents: Securities that are convertible into or
exercisable for shares of Common Stock.
(d) Exchange Act: The Securities Exchange Act of 1934, as amended.
(e) Exercise Price: $19 7/8 per Warrant Share, as such price may be
adjusted from time to time pursuant to Article III hereof.
(f) Expiration Date: 5:00 P.M., New York time, on March 7, 1997 or, if
such day is not a Business Day, the next succeeding day which is a Business
Day.
(g) Holder: A holder of Warrants and/or Registrable Securities.
(h) NASD: National Association of Securities Dealers, Inc.
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(i) Person: An individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
(j) Piggyback Registration: See Section 7.01.
(k) Prospectus: Any prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments and all material incorporated
by reference in such Prospectus.
(l) Public Offering: A public offering of any of the Company's equity
or debt securities pursuant to a registration statement under the Securities
Act.
(m) Registrable Securities: Any Warrant Shares issued or issuable to
the Warrant holder, and/or its designees or transferees as permitted under
Section 6.02 and/or other securities that may be or are issued by the Company
upon exercise of Warrants, including those which may thereafter be issued by
the Company in respect of any such securities by means of any stock splits,
stock dividends, recapitalizations or the like, and as adjusted pursuant to
Article III hereof; provided, however, that as to any particular security
contained in Registrable Securities, such securities shall cease to be
Registrable Securities (i) when a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act;
or (ii) when they shall have been sold or are saleable pursuant to Rule 144 (or
any successor provision) under the Securities Act.
(n) Registration Expenses: Any and all expenses incident to
performance of or compliance with Article VII, including, without limitation,
(i) all SEC, stock exchange, NASD registration and filing fees, listing and
transfer agent fees; (ii) all fees and expenses of complying with securities or
blue sky laws (including the fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities); (iii) all printing, mailing, messenger and delivery expenses and
(iv) all fees and disbursements of counsel for the Company and of its
independent certified public accountants, including the expenses of any special
audits and/or "cold comfort" letters required by or incident to such
performance and compliance, but excluding underwriting fees, discounts and
commissions and transfer taxes, if any.
(o) Registration Statement: Any registration statement of the Company
filed or to be filed with the SEC which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement,
including post-effective amendments and all exhibits to and material
incorporated by reference by such registration statement.
(p) SEC: The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
(q) Securities Act: The Securities Act of 1933, as amended.
(r) Warrant Shares: Common Stock purchasable upon exercise of the
Warrants.
(s) Warrantholder: The person(s) or entity(ies) to whom this Warrant
is originally issued, or any successor in interest thereto, or any assignee or
transferee thereof, in whose name this Warrant is registered upon the books to
be maintained by the Company for that purpose.
(t) Warrants: This Warrant and all other warrants that may be issued
in its or their place (together initially evidencing the right to purchase an
aggregate of 70,000 shares of Common Stock).
ARTICLE II
Duration and Exercise of Warrant
Section 2.01: Duration of Warrant. (a) Subject to the terms contained
herein, this Warrant may be exercised at any time after March 7, 1996, and
before 5:00 P.M., New York time, on the Expiration Date. If this Warrant is not
exercised on the Expiration Date, it shall become void, and all rights
hereunder shall thereupon cease.
Section 2.02 : Exercise of Warrant. (a) The Warrantholder may exercise
this Warrant, in whole or in part, as follows:
i) By presentation and surrender of this Warrant to the
Company at its corporate office at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000, with the Subscription Form annexed hereto duly executed
and accompanied by payment of the Exercise Price for each Warrant
Share to be purchased. Payment for Warrant Shares shall be made in
cash or by certified or official bank check payable to the order of
the Company; or
ii) By presentation and surrender of this Warrant to
the Company at its corporate office set forth above, with a Cashless
Exercise Form annexed hereto duly executed (a "CASHLESS EXERCISE").
Such presentation and surrender shall be deemed a waiver of the
Warrantholder's obligation to pay all or any portion of the aggregate
Exercise Price. In the event of a Cashless Exercise, the Warrantholder
shall exchange its Warrant for that number of shares of Common Stock
determined by multiplying the number of Warrant Shares for which the
Warrantholder desires to exercise this Warrant by a fraction, the
numerator of which shall be the difference between the then current
market price per share of the Common Stock and the Exercise Price, and
the denominator of which shall be the then current market price per
share of Common Stock. For purposes of any computation under this
Section 2.02(a)(ii), the then current market price per share of Common
Stock at any date shall be deemed to be the average for the thirty
consecutive business days immediately prior to the Cashless Exercise
of the daily closing prices of the Common Stock on the principal
national securities exchange on which the Common Stock is admitted to
trading or listed, or if not listed or admitted to trading on any such
exchange, the closing prices as reported by the Nasdaq National
Market, or if not then listed on the Nasdaq National Market, the
average of the highest reported bid and lowest reported asked prices
as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System ("Nasdaq") or if not then publicly traded,
the fair market price of the Common Stock as determined by the Board
of Directors of the Company.
(b) Upon receipt of this Warrant with the Subscription Form
duly executed and accompanied by payment of the aggregate Exercise Price or
upon receipt of this Warrant with a Cashless Exercise form duly executed, in
each case as set forth in Section 2.02(a) for the Warrant Shares for which this
Warrant is then being exercised, the Company shall cause to be issued
certificates for the total number of whole shares of Common Stock for which
this Warrant is being exercised or the net amount of Warrant Shares which the
Warrantholder is entitled to receive upon a Cashless Exercise (adjusted to
reflect the effect of the anti-dilution provisions contained in Article III
hereof, if any, and as provided in Section 4.04 hereof) in such denominations
as are requested for delivery to the Warrantholder, and the Company shall
thereupon deliver such certificates to the Warrantholder. If at the time this
Warrant is exercised a registration statement is not in effect to register
under the Securities Act the Warrant Shares issuable upon exercise of this
Warrant, the Company may require the Warrantholder to make such investment
intent representations, and may place such legends on certificates representing
the Warrant Shares, as may be reasonably required in the opinion of counsel to
the Company to permit the Warrant Shares to be issued without such
registration.
(c) In case the Warrantholder shall exercise this Warrant
with respect to less than all of the Warrant Shares that may be purchased under
this Warrant, the Company shall execute a new warrant in the form of this
Warrant for the balance of such Warrant Shares and deliver such new warrant to
the Warrantholder.
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(d) The Company shall pay any and all stock transfer and
similar taxes which may be payable in respect of the issue of this Warrant or
in respect of the issue of any Warrant Shares. The Company shall not, however,
be required to pay any tax imposed on income or gross receipts of the
Warrantholder or any tax which may be payable by the Warrantholder in respect
of any transfer involved in the issuance or delivery of this Warrant or of
Warrant Shares in a name other than that of the Warrantholder at the time of
surrender and, until the payment of such tax, shall not be required to issue
such Warrant Shares.
(e) The Company shall use its best efforts to cause all
Warrant Shares to be listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed or, if not then
listed, cause such Warrant Shares to be included in a national automated
quotation system.
ARTICLE III
Adjustment of Shares of Common Stock
Purchasable and of Exercise Price
The Exercise Price and the number and kind of Warrant Shares shall be
subject to adjustment from time to time upon the happening of certain events as
provided in this Article III.
Section 3.01: Mechanical Adjustments. (a) If at any time prior to the
exercise of this Warrant in full, the Company shall (i) pay a dividend or make
a distribution on its shares of Common Stock in either case in shares of Common
Stock; (ii) subdivide, reclassify or recapitalize its outstanding Common Stock
into a greater number of shares; (iii) combine, reclassify or recapitalize its
outstanding Common Stock into a smaller number of shares; or (iv) issue by
reclassification of its Common Stock any shares of capital stock of the
Company, the Exercise Price in effect at the time of the record date of such
dividend, distribution, subdivision, combination, reclassification or
recapitalization shall be adjusted so that the Warrantholder shall be entitled
to receive, upon exercise of this Warrant, the aggregate number and kind of
shares which, if this Warrant had been exercised in full immediately prior to
such time, he would have owned upon such exercise and been entitled to receive
upon such dividend, subdivision combination, reclassification or
recapitalization. Any adjustment required by this paragraph 3.01(a) shall be
made whenever any event listed in this paragraph 3.01(a) shall occur.
(b) If at any time prior to the exercise of this Warrant in
full, the Company shall issue or distribute to the holders of shares of Common
Stock evidences of its indebtedness, any other securities of the Company or any
cash, property or other assets (excluding a dividend, distribution,
combination, reclassification or recapitalization referred to in Section
3.01(a), cash dividends or cash distributions paid out of net profits legally
available therefor if the full amount thereof, together with the value of other
dividends and distributions made substantially concurrently therewith or
pursuant to a plan which includes payment thereof, is equivalent to not more
than 5% of the Company's net worth) (any such nonexcluded event being herein
called a "SPECIAL DIVIDEND"), the Exercise Price shall be decreased immediately
after the effective date of such Special Dividend to a price determined by
multiplying the Exercise Price then in effect by a fraction the numerator of
which shall be the then current market price per share of the Common Stock (as
defined in Section 3.01(e)) on such effective date less the fair market value
(as determined in good faith by the Company's Board of Directors) of the
evidences of indebtedness, securities or property, or other assets issued or
distributed in such Special Dividend applicable to one share of Common Stock
and the denominator of which shall be the then current market price per share
of Common Stock. Any adjustment required by this paragraph 3.01(b) shall be
made whenever the effective date of any such Special Dividend occurs.
(c) If at any time prior to the exercise of this Warrant in
full, the Company shall make a distribution to the holders of shares of Common
Stock other than dividends or distributions covered by Section 3.01(a) or (b)
of subscription rights, options or warrants for Common Stock or Common Stock
Equivalents, then
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in each such case the Exercise Price in effect after the effective date of such
distribution shall be adjusted to the price determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction, the numerator
of which shall be the current market price per share of Common Stock (as
defined in Section 3.01(e)), less the fair market value (as determined in good
faith by the Company's Board of Directors) of said Common Stock subscription
rights, options and warrants or of such Common Stock Equivalents applicable to
one share of Common Stock, and the denominator of which shall be the current
market price per share of Common Stock. Any adjustment required by this
paragraph 3.01(c) shall be made whenever the effective date of any such
distribution occurs. To the extent such shares of Common Stock (or Common Stock
Equivalents) are not delivered after the expiration of such subscription
rights, options or warrants, the Exercise Price shall be readjusted to the
Exercise Price which would then be in effect had the adjustments made upon the
issuance of such rights, options or warrants been made on the basis of delivery
of only the number of shares of Common Stock (or Common Stock Equivalents)
actually delivered, but no such readjustment shall have the effect of
increasing the Exercise Price to an amount which exceeds the lower of (i) the
Exercise Price on the original adjustment date (prior to the original
adjustment) or (ii) the Exercise Price that would have resulted from any other
adjustments pursuant to this Article III (other than adjustments for the
issuance of subscription rights, options or warrants which expire unexercised).
(d) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to one or more of paragraphs (a), (b) and (c) of
this Section 3.01, the Warrant Shares shall simultaneously be adjusted by
multiplying the number of Warrant Shares initially issuable upon exercise of
each Warrant by the Exercise Price in effect immediately prior to the date
thereof and dividing the product so obtained by the Exercise Price, as
adjusted.
(e) For the purpose of any computation under this Section
3.01, the current market price per share of Common Stock at any date shall be
deemed to be the average of the daily closing price for 30 consecutive Business
Days commencing 45 Business Days before such date. The closing price for each
day shall be the closing price of the Common Stock as reported by the national
securities exchange upon which the Common Stock is then listed or if not listed
on any such exchange, the average of the closing prices as reported by the
Nasdaq National Market, or if not then listed on the Nasdaq National Market,
the average of the highest reported bid and lowest reported asked prices as
reported by Nasdaq, or if not then publicly traded, as the fair market price as
determined by the Company's Board of Directors.
(f) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least ten
cents ($.10) in such price; provided, however, that any adjustments which by
reason of this paragraph (f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 3.01 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) If at any time, as a result of any adjustment made
pursuant to Section 3.01(a), the Warrantholder thereafter shall become entitled
to receive any shares of the Company other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of any Warrant shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Stock
contained in this Section 3.01.
(h) In case any event shall occur as to which the other
provisions of this Article III are not strictly applicable but as to which the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles hereof then, in each such case, the Warrantholders representing the
right to purchase a majority of the Warrant Shares subject to all outstanding
Warrants may appoint a firm of independent public accountants of recognized
national standing reasonably acceptable to the Company, which shall give their
opinion as to the adjustment, if any, on a basis consistent with the essential
intent and principles established herein, necessary to preserve the purchase
rights represented by the Warrants. Upon
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receipt of such opinion, the Company will promptly mail a copy thereof to the
Warrantholder and shall make the adjustments described therein. The fees and
expenses of such independent public accountants shall be borne by the Company.
(i) If, as a result of an adjustment made pursuant to this
Article III, the Warrantholder thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Warrantholder promptly after such adjustment) shall determine the
allocation of the adjusted Exercise Price between or among shares or such
classes of capital stock or shares of Common Stock and other capital stock.
Section 3.02: Notice of Adjustment. Whenever the number of Warrant
Shares or the Exercise Price is adjusted as herein provided, the Company shall
prepare and deliver to the Warrantholder a certificate signed by its President,
any Vice President, Treasurer or Secretary, setting forth the adjusted number
of shares purchasable upon the exercise of this Warrant and the Exercise Price
of such shares after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which such
adjustment was made.
Section 3.03: No Adjustment for Dividends. Except as provided in
Section 3.01(b) and (c) of this Agreement, no adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
Section 3.04: Preservation of Purchase Rights in Certain Transactions.
In case of any capital reorganization or reclassification, or any consolidation
or merger to which the Company is a party other than a merger or consolidation
in which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of the property of the Company as an entirety or
substantially as an entirety, or in the case of any statutory exchange of
securities with another corporation (including any exchange effected in
connection with a merger of a third corporation into the Company), this
Warrantholder shall have the right thereafter to receive on the exercise of
this Warrant the kind and amount of securities, cash or other property which
the Warrantholder would have owned or have been entitled to receive immediately
after such reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance had this Warrant been exercised immediately prior
to the effective date of such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance and in any such case, if
necessary, appropriate adjustment shall be made in the application of the
provisions set forth in this Article III with respect to the rights and
interests thereafter of the Warrantholder to the end that the provisions set
forth in this Article III shall thereafter correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant.
The provisions of this Section 3.04 shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, statutory
exchanges, sales or conveyances. The issuer of any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant
shall be responsible for all of the agreements and obligations of the Company
hereunder. Notice of any such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance and of said provisions so
proposed to be made, shall be mailed to the Holders of the Warrants not less
than 30 days prior to such event. A sale of all or substantially all of the
assets of the Company for a consideration consisting primarily of securities
shall be deemed a consolidation or merger for the foregoing purposes.
Section 3.05: Form of Warrant After Adjustments. The form of this
Warrant need not be changed because of any adjustments in the Exercise Price or
the number or kind of the Warrant Shares, and Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in this Warrant, as initially issued.
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ARTICLE IV
Other Provisions Relating
to Rights of Warrantholder
Section 4.01: No Rights as Stockholders; Notice to Warrantholders.
Nothing contained in this Warrant shall be construed as conferring upon the
Warrantholder or his or its transferees the right to vote or to receive
dividends or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or of any
other matter, or any rights whatsoever as stockholders of the Company. The
Company shall give notice to the Warrantholder if at any time prior to the
expiration or exercise in full of the Warrants, any of the following events
shall occur:
(a) the Company shall declare any dividend payable in any
securities upon shares of Common Stock or make any distribution (other than a
cash dividend subject to the parenthetical set forth in Section 3.01(b)) to the
holders of shares of Common Stock;
(b) the Company shall offer to the holders of shares of
Common Stock any additional shares of Common Stock or Common Stock Equivalents
or any right to subscribe thereto;
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, or sale of all, or
substantially all, of its property, assets, and business as an entirety) shall
be proposed; or
(d) any consolidation of the Company with or merger of the
Company into another corporation, or in the case of any sale or conveyance to
another corporation of the property of the Company, as an entirety or
substantially as an entirety shall be proposed.
Such giving of notice shall be initiated (i) at least ten (10) Business Days
prior to the date fixed as a record date or the date of closing of the
Company's stock transfer books for the determination of the stockholders
entitled to such dividend, distribution, or subscription rights, or for the
determination of the stockholders entitled to vote on such proposed merger,
consolidation, sale, conveyance, dissolution, liquidation or winding up. Such
notice shall specify such record date or the date of closing the stock transfer
books, as the case may be. Failure to provide such notice shall not affect the
validity of any action taken in connection with such dividend, distribution or
subscription rights, or proposed merger, consolidation, sale, conveyance,
dissolution, liquidation or winding up.
Section 4.02: Lost, Stolen, Mutilated or Destroyed Warrants. If this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall,
in the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination and tenor as, and in substitution for, this
Warrant.
Section 4.03: Reservation of Shares.
(a) The Company shall at all times reserve and keep available
for the exercise of this Warrant such number of authorized shares of Common
Stock as are sufficient to permit the exercise in full of this Warrant.
(b) Prior to the issuance of any shares of Common Stock upon
exercise of this Warrant, the Company shall use its best efforts to secure the
listing of such shares of Common Stock upon the securities exchange or
automated quotation system, if any, upon which shares of Common Stock are then
listed.
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(c) The Company covenants that all shares of Common Stock
issued on exercise of this Warrant will be validly issued, fully paid,
nonassessable and free of preemptive rights.
Section 4.04: No Fractional Shares. Anything contained herein to the
contrary notwithstanding, the Company shall not be required to issue any
fraction of a share in connection with the exercise of this Warrant, and in any
case where the Warrantholder would, except for the provisions of this Section
4.04, be entitled under the terms of this Warrant to receive a fraction of a
share upon the exercise of this Warrant, the Company shall, upon the exercise
of this Warrant and receipt of the Exercise Price, issue the smaller number of
whole shares purchasable upon exercise of this Warrant and shall make a cash
adjustment in respect of such fraction of a share to which the Warrantholder
would otherwise be entitled.
ARTICLE V
Treatment of Warrantholder
Prior to due presentment for registration of transfer of this Warrant,
the Company may deem and treat the Warrantholder as the absolute owner of this
Warrant (notwithstanding any notation of ownership or other writing hereon) for
all purposes and shall not be affected by any notice to the contrary.
ARTICLE VI
Split-Up, Combination.
Exchange and Transfer of Warrants
Section 6.01: Split-Up, Combination and Exchange of Warrants. Subject
to the provisions of Section 6.02 hereof, this Warrant may be split up,
combined or exchanged for another Warrant or Warrants containing the same terms
to purchase a like aggregate number of Warrant Shares. If the Warrantholder
desires to split up, combine or exchange this Warrant, he or it shall make such
request in writing delivered to the Company and shall surrender to the Company
this Warrant and any other Warrants to be so split up, combined or exchanged.
Upon any such surrender for a split up, combination or exchange, the Company
shall execute and deliver to the person entitled thereto a Warrant or Warrants,
as the case may be, as so requested. The Company shall not be required to
effect any split up, combination or exchange which will result in the issuance
of a Warrant entitling the Warrantholder to purchase upon exercise a fraction
of a share of Common Stock or a fractional Warrant. The Company may require
such Warrantholder to pay a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Warrants.
Section 6.02: Restrictions on Transfer. This Warrant may not be sold,
hypothecated, exercised, assigned or transferred (any such action, a
"TRANSFER") except in accordance with and subject to the provisions of the
Securities Act and the rules and regulations promulgated thereunder. If at the
time of a Transfer, a Registration Statement is not in effect to register this
Warrant, the Company may require the Warrantholder to make such
representations, and may place such legends on certificates representing this
Warrant, as may be reasonably required in the opinion of counsel to the Company
to permit a Transfer without such registration.
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ARTICLE VII
Registration Under the Securities Act of 1933
Section 7.01: Piggyback and Automatic Registration.
(a) Right to Include Registrable Securities. If at any time
after March 7, 1997 and prior to March 7, 1999, the Company proposes to
register any shares of the Common Stock or any other class of equity security
or any Common Stock Equivalent under the Securities Act on any form for the
registration of securities under such Act, whether or not for its own account
(other than (i) a registration of a stock option, stock purchase or
compensation or incentive plan or of stock issued or issuable pursuant to any
such plan, or a dividend investment plan; (ii) a registration of securities
proposed to be issued in exchange for securities or assets of, or in connection
with a merger or consolidation with, another corporation; or (iii) a
registration of securities proposed to be issued in exchange for other
securities of the Company) in a manner which would permit registration of
Registrable Securities for sale to the public under the Securities Act (a
"PIGGYBACK REGISTRATION"), it shall at such time give written notice to all
Holders of its intention to do so and of such Holders' rights under this
Section 7.01. Such rights are referred to hereinafter as "PIGGYBACK
REGISTRATION RIGHTS". Upon the written request of such Holder made within 20
days after the giving of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of disposition thereof), the Company shall include in the
Registration Statement the Registrable Securities which the Company has been so
requested to register by the Holders thereof.
(b) Withdrawal of Piggyback Registration by Company. If, at
any time after giving written notice of its intention to register any
securities in a Piggyback Registration but prior to the effective date of the
related Registration Statement filed in connection with such Piggyback
Registration, the Company shall determine for any reason not to register such
securities, the Company shall give written notice of such determination to each
Holder and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such Piggyback Registration. All best
efforts obligations of the Company pursuant to Section 7.03 shall cease if the
Company determines to terminate any registration where Registrable Securities
are being registered pursuant to this Section 7.01.
(c) Piggyback Registration of Underwritten Public Offerings.
If a Piggyback Registration involves an underwritten offering, then all Holders
requesting to have Registrable Securities included in the Company's
registration must sell their Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to other
selling stockholders.
(d) Payment of Registration Expenses for Piggyback
Registration. The Company shall pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to a
Piggyback Registration Right contained in this Section 7.01, except for the
fees and disbursements of any counsel retained by the Holders for whom
Registrable Securities are being registered and any underwriting fees, selling
discounts or commissions or transfer taxes.
(e) Priority in Piggyback Registration. If a Piggyback
Registration involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, marketing or other factors
require or make it desirable for there to be a limitation of the number of
shares to be underwritten, then the Registrable Securities to be offered for
the accounts of Holders pursuant to a Piggyback Registration Right shall be
eliminated entirely or reduced pro rata as to all requesting Holders on the
basis of the relative number of Registrable Securities each such Holder has
requested to be included in such registration, to the extent necessary to
reduce the total amount or kind of Registrable Securities to be included in
such offering to the amount advised by such managing underwriter; provided,
however, that no securities may be offered in such registration for the account
of
- XVI -
persons other than the Company (including for this purpose any affiliate of the
Company) by virtue of their also having "piggyback" registration rights, or
otherwise, unless the Registrable Securities requested to be included in such
registration are so included on a pro rata basis (by percentage of each class
of securities) as to such other persons holding "piggyback" registration rights
and the Holders requesting registration and provided, further, that nothing in
this paragraph (e) shall be implied to permit the Company to include in such
registration shares of any person other than persons holding "piggyback"
registration rights unless the Registrable Securities requested to be included
in such registration are so included.
(f) Expiration of Piggyback Registration Rights. The
Piggyback Registration Rights shall survive the exercise of the Warrant or the
transactions or events pursuant to which such Registrable Securities were
issued, but all such rights will terminate in all events on March 7, 1999.
(g) Demand Registration. The Holder of Warrants to purchase
at least 36,000 shares of Common Stock shall be entitled to demand that the
Company use its best efforts to file a registration statement on Form S-3
registering the shares of Common Stock underlying this Warrant at any time 31
days after the closing of the Company's next public offering and, if such
offering does not occur by six months from May 24, 1996, such Holder shall have
such demand rights from and after such date.
Section 7.02: Registration Procedures. If and whenever the Company is
required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Article
VII, the Company shall, at its expense and as expeditiously as practicable:
(a) before filing a Registration Statement or Prospectus or
any amendment or supplements thereto, including documents incorporated by
reference after the initial filing of any Registration Statement, the Company
shall furnish to the selling Holders pursuant to such Registration Statement
and the underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such Holders and
underwriters;
(b) prepare and file with the SEC such amendments and
post-effective amendments to a Registration Statement as may be necessary to
keep such Registration Statement effective for at least 90 days or until the
Holder or Holders have completed the distribution described in the Registration
Statement relating thereto, whichever first occurs; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement or supplement to such
Prospectus;
(c) notify the selling Holders and the managing underwriters,
if any, promptly, and (if requested by any such Person) confirm such advice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the SEC for amendments or supplements to a Registration Statement or
related Prospectus or for additional information; (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose; (iv) if at any time the
representations and warranties of the Company contemplated by paragraph (l)
below cease to be true and correct; (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and (vi) of the happening of
any event that makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement or Prospectus
so that they will not contain any untrue
- XVII -
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
(d) deliver to each selling Holder and the underwriters, if
any, without charge, as many copies of the Prospectus or Prospectuses
(including each preliminary Prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to the use of such
Prospectus or any amendment or supplement thereto by each of the selling
Holders and the underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto;
(e) cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two Business Days prior to any sale of Registrable Securities
to the underwriters;
(f) upon the occurrence of any event contemplated by
paragraph (c)(vi) above, prepare a supplement or post-effective amendment to
the applicable Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(g) with respect to each issue or class of Registrable
Securities, use its best efforts to cause all Registrable Securities covered by
the applicable Registration Statement to be listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed or,
if not then listed, cause such Registered Securities to be included in a
national automated quotation system;
(h) make available for inspection by a representative of the
selling Holders, any underwriter participating in any disposition pursuant to
such registration and any attorney or accountant retained by such selling
Holders or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with
such registration; provided, that any records, information or documents that
are designated by the Company in writing as confidential shall be kept
confidential by such Persons unless disclosure of such records, information or
documents is requested by court or administrative order;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to
its security holders an earnings statement, covering a period of not less than
12 months satisfying the provisions of Section 11(a) or Rule 158 of the
Securities Act not later than 16 months after the first day of the month
following the effective date of the applicable Registration Statement;
(j) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the sellers thereof to consummate the disposition of such Registrable
Securities; and
Except as otherwise provided in this Agreement, the Company
shall have sole control in connection with the preparation, filing, withdrawal,
amendment or supplementing of each Registration Statement, the selection of
underwriters and the distribution of any preliminary prospectus included in the
Registration Statement, and may include within the coverage thereof additional
shares of Common Stock or other securities for its own account or for the
account of one or more of its other security holders.
- XVIII -
Holders shall have no registration rights hereunder in
respect of any proposed transfer of such securities if, in the opinion of
recognized securities counsel to the Company, (A) registration under the
Securities Act is not required for the transfer of the Registrable Securities
in the manner provided by such Holder or (B) a post-effective amendment to an
existing registration statement would be legally sufficient for such transfer
and such post-effective amendment is filed with the SEC and declared effective.
Each seller of Registrable Securities as to which any
registration is being effected shall furnish to the Company such information
regarding the distribution of such securities and such other information as may
otherwise be required by the Securities Act to be included in such Registration
Statement.
Each Holder shall give at least three (3) business days'
prior written notice (a "Sale Notice") to the Company of any proposed sale of
Registrable Securities under the Registration Statement effective pursuant to
this Section 7.02 and shall not make such sale (i) unless such three (3) days
lapse without written response from the Company, or (ii) in the event the
Company responds by stating that a prospectus supplement or post-effective
amendment will be filed pursuant to this Section 7.02, until the Company has
notified such Holder pursuant to Section 7.02 l(c) that any such post-effective
amendment has become effective or prospectus supplement has been filed. The
Sale Notice shall specify the proposed date of sale and the amount of
Registrable Securities to be sold. A Sale Notice shall be effective for 30 days
after it is given, unless terminated earlier by notice to the Company by the
Holder withdrawing such Sale Notice or until the Holder giving such Sale Notice
shall no longer own any Registrable Securities or Warrants; provided, however,
that if during the period when such Sale Notice is effective the Company
notifies the Holder that a prospectus supplement or post-effective amendment
must be filed pursuant to Section 7.02(c) as a result of the happening of an
event that results in the Registration Statement, as then in effect, including
an untrue statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, the Holder shall not
make any sale until the Company has notified the Holder pursuant to Section
7.02(c) that any such post-effective amendment has become effective or
prospectus supplement has been filed.
Each Holder agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening
of any event of the kind described in paragraph (c) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus until such Xxxxxx's receipt of the
copies of the supplemented or amended Prospectus contemplated by paragraph (f)
hereof, or until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated by reference in such Prospectus,
and, if so directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
Section 7.03: Indemnification.
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless each Holder, its officers, directors and agents and
each Person who controls such Holder or agents (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
- XIX -
necessary to make the statements therein not misleading; provided, however,
that such indemnity shall not inure to the benefit of any Holder (or any Person
controlling such Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) on account of any losses, claims, damages or
liabilities arising from the sale of the Registrable Securities if such untrue
statement or omission or alleged untrue statement or omission was made in such
Registration Statement, Prospectus or preliminary prospectus, or such amendment
or supplement, in reliance upon and in conformity with information furnished in
writing to the Company by the Holder specifically for use therein. The Company
shall also indemnify underwriters and selling brokers participating in the
distribution, their officers and directors and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested. This indemnity agreement shall be
in addition to any liability which the Company may otherwise have.
(b) Indemnification by Selling Holders. In connection with
any registration, each selling Holder will furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
any Registration Statement or Prospectus and agrees to indemnify, to the same
extent as the indemnification provided by the Company in Section 7.03(a), the
Company, its directors and officers and each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) but only insofar as such losses, claims, damages and liabilities
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in the Registration Statement, the
Prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, in reliance upon and in conformity with information furnished in
writing by such Holder to the Company specifically for use therein. In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the net proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation. The
Company shall be entitled to receive indemnities from underwriters and selling
brokers participating in the distribution, to the same extent as provided above
with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus, Registration Statement or
preliminary prospectus or any amendment thereof or supplement thereto.
(c) Conduct of Indemnification Procedure. Any party that
proposes to assert the right to be indemnified hereunder will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of all papers
served. No indemnification provided for in Section 7.03(a) or 7.03(b) shall be
available to any party who shall fail to give notice as provided in this
Section 7.03(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice, but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party for contribution or
otherwise than under this Section. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses, except as provided
below and except for the reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized in writing by the indemnifying parties, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying parties and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying parties shall not have employed
- XX -
counsel to assume the defense of such action within a reasonable time after
notice of the commencement thereof, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action, suit,
proceeding or claim effected without its written consent, which consent shall
not be unreasonably withheld. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm in such jurisdiction at any one time for all such indemnified
party or parties.
Section 7.04: Restrictions on Public Sale by Holder of Registrable
Securities. Each Holder whose Registrable Securities are covered by a
Registration Statement filed pursuant to Article VII hereof agrees, if
requested by the managing underwriters in an underwritten offering, not to
effect any public sale or distribution of any securities of the Company of the
same class as the securities included in such Registration Statement, including
a sale pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration), during the 10-day period prior to, and during the
90-day period beginning on, the closing date of each underwritten offering made
pursuant to such Registration Agreement, to the extent timely notified in
writing by the managing underwriters.
ARTICLE VIII
Other Matters
Section 8.01: Expenses of Transfer. The Company shall from time to
time promptly pay, subject to the provisions of Section 6.01 and paragraph (d)
of Section 2.02, all taxes and charges that may be imposed upon the Company in
respect to the issuance or delivery of Warrant Shares upon the exercise of this
Warrant by the Warrantholder.
Section 8.02: Successors and Assigns. All the covenants and provisions
of this Warrant by or for the benefit of the Company shall bind and inure to
the benefit of its successors and assigns hereunder.
Section 8.03: Amendments and Waivers. The provisions of this Warrant,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
Holders of at least a majority of the outstanding Registrable Securities
(assuming exercise of the Warrants). Holders shall be bound by any consent
authorized by this Section whether or not certificates representing such
Registrable Securities have been marked to indicate such consent.
Section 8.04: Counterparts. This Warrant may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 8.05: Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York.
Section 8.06: Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
- XXI -
Section 8.07: Integration/Entire Agreement. This Warrant is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Warrant
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
Section 8.08: Attorneys' Fees. In any action or proceeding brought to
enforce any provisions of this Warrant, or where any provisions hereof are
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees and disbursements in addition to its costs
and expenses and any other available remedy.
Section 8.09: Computations of Consent. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Warrants and/or Registrable Securities held by the Company
or its affiliates (other than the Warrantholder or subsequent Holders if they
are deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
Section 8.10: Notices. Notice or demand pursuant to this Warrant to be
given or made by the Warrantholder to or on the Company shall be sufficiently
given or made if sent by first class mail, postage prepaid, addressed, until
another address is designated in writing by the Company, as follows:
Family Golf Centers, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Any notice or demand authorized by this Warrant to be given or made by
the Company to or on the Warrantholder or a Holder of Registrable Securities
shall be sufficiently given or made if sent by first class mail, postage
prepaid, to the Warrantholder or the Holder of Registrable Securities at his or
its last known address as it shall appear on the books of the Company.
Section 8.11: Headings. The headings herein are for convenience only
and are not part of this Warrant and shall not affect the interpretation
thereof.
- XXII -
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
under its corporate seal as of the 7th day of May, 1996.
FAMILY GOLF CENTERS, INC.
By:_______________________________________
Name: Xxxxxxx Xxxxx,
Title: President,
Chief Executive Officer and
Chairman of the Board
Attest:________________________
Secretary
- XXIII -
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, _________________________ hereby sells,
assigns and transfers unto _____________________ the within Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint __________________ attorney, to
transfer said Warrant Certificate on the books of the within-named Company with
respect to the number of Warrants set forth below, with full power of
substitution in the premises:
Name(s) of
Assignee(s) Address No. of Warrants
----------- ------- ---------------
And if said number of Warrants shall not be all the Warrants represented by the
Warrant Certificate, a new Warrant Certificate is to be issued in the name of
said undersigned for the balance remaining of the Warrants represented by said
Warrant Certificate.
Dated: _________________, 19__ _____________________________________
Note: The above signature should
correspond exactly with the name
on the face of this Warrant
Certificate.
- XXIV -
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant)
FAMILY GOLF CENTERS, INC.:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, _____________________ shares of Common Stock, as provided for
therein, and tenders herewith payment of the purchase price in full in the form
of cash or a certified or official bank check in the amount of $ .
If said number of shares shall not be all the shares purchasable under
the within Warrant Certificate, a new Warrant Certificate is to be issued in
the name of said undersigned for the balance remaining of the shares
purchasable thereunder.
Please issue a certificate or certificates for such Common Stock in
the name of, and pay any cash for any fractional share to:
Name:______________________________
(Please Print Name, Address and Social
Security No.)
Address:_____________________________
_____________________________________
_____________________________________
Social Security Number:______________
Signature:___________________________
NOTE: The above signature should correspond
exactly with the name on the first page of
this Warrant Certificate or with the name
of the assignee appearing in the assignment
form below.
- XXV -
CASHLESS EXERCISE FORM
(To be executed upon exercise of Warrant
pursuant to Section 2.02(a)(ii))
The undersigned hereby irrevocably elects to surrender its Warrant for
________ shares of Common Stock pursuant to the Cashless Exercise provisions of
the within Warrant, as provided for in Section 2.02(a)(ii) of such Warrant.
If said number of shares shall not be all the shares exchangeable or
purchasable under the within Warrant, a new Warrant is to be issued in the name
of the undersigned for the balance remaining of the shares purchasable
thereunder.
Please issue a certificate or certificates for such Common Stock in
the name of, and pay cash for fractional shares to:
Name:______________________________
(Please Print Name, Address and Social
Security No.)
Address:_____________________________
_____________________________________
_____________________________________
Social Security Number:______________
Signature:___________________________
NOTE: The above signature should correspond
exactly with the name on the first page of
this Warrant Certificate or with the name
of the assignee appearing in the assignment
form below.
- XXVI -
