EXHIBIT (99d)
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RBB WARRANT
THIS WARRANT AND THE SECURITES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITES ACT OF 1933, AS AMENDED (THE "ACT") AND THIS
WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS
REGISTERED UNDER THE ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
187,500 Shares Warrant
Issued January 27, 1997
FOR VALUE RECEIVED, GOLF-TECHNOLOGY HOLDING, INC. (the "Company"), an
Idaho corporation, hereby certifies that RBB Bank Aktiengesellschaft ("RBB"),
or its permitted assigns are entitled to purchase from the Company, at any time
or from time to time commencing March 13, 1997 (the "Commencement Date"), and
prior to 5:00 p.m., New York, New York time then current, on December 31, 2002
(the "Expiration Date"), 187,500 fully paid and non-assessable shares of the
common stock, $.00l par value, of the Company, at a purchase price of $3.00 per
share. Hereinafter, (i) said common stock, together with any other equity
securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder are referred to as the "Warrant Shares,"
(iii) the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price," (iv) the price payable hereunder
for each of the shares of the Warrant Shares is referred to as the "Per Share
Warrant Price" and (v) this warrant and all warrants hereafter issued in
exchange or substitution for this warrant are referred to as the "Warrants." The
Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant
Price is subject to adjustment as hereinafter provided; in the event of any such
adjustment, the number of Warrant Shares shall be adjusted by dividing the
Aggregate Warrant Price by the Per Share Warrant Price in effect immediately
after such adjustment.
1. Exercise of Warrant.
(a) This Warrant may be exercised, in whole at any time or in part from
time to time, commencing on the Commencement Date, and prior to 5:00 p.m., New
York, New York time then current, on the Expiration Date, by the holder of this
Warrant (the "Holder") by the surrender of this Warrant (with the Subscription
attached hereto in the form of Exhibit A and the Notice of Conversion or
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Exercise (the "Notice of Exercise"), attached to that certain Regulation S
Securities Subscription Agreement, by and between the Company and RBB, dated as
of January 27, 1997 and attached hereto as Exhibit B, duly executed) at the
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address set forth in Subsection 10(a) hereof, provided, however, (i) the Holder
of this Warrant must certify in the Note of Exercise that Holder is not a "US
Person" as that term is defined in Rule 902(e) of Regulation D pursuant to the
Securities Act of 1933, as amended (a copy of which is attached
hereto as Exhibit C) (ii) such Notice of Exercise must be executed outside of
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the United States, and (iii) the address where the Holder instructs the Company
to forward the certificate for the shares issued upon exercise of this Warrant
is outside of the United States, together with proper payment of the Aggregate
Warrant Price, or the proportionate part thereof if this Warrant is exercised in
part. Payment for the Warrant Shares shall be made by wire transfer, certified
or official bank check, payable to the order of the Company. If this Warrant is
exercised in part, this Warrant must be exercised for a number of whole shares
of the Common Stock, and the Holder is entitled to receive a new Warrant
covering the number of Warrant Shares in respect of which this Warrant has not
been exercised and setting forth the proportionate part of the Aggregate Warrant
Price applicable to such Warrant Shares. Upon such exercise and surrender of
this Warrant, the Company will (i) issue a certificate or certificates in the
name of the Holder for the number of whole shares of the Common Stock to which
the Holder shall be entitled and, if this Warrant is exercised in whole, in lieu
of any fractional share of the Common Stock to which the Holder shall be
entitled, pay cash equal to the fair value of such fractional share (determined
in such reasonable manner as the Board of Directors of the Company shall
determine), and (ii) deliver the other securities and properties receivable upon
the exercise of this Warrant, or the proportionate part hereof if this Warrant
is exercised in part, pursuant to the provisions of this Warrant.
(b) In lieu of exercising this Warrant in the manner set forth in paragraph
1(a) above, this Warrant may be exercised between the Commencement Date and the
Expiration Date by surrender of the Warrant without payment of any other
consideration, commission or remuneration, together with the Notice of Exercise
and cashless exercise subscription, in the form attached hereto as Exhibit D,
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duly executed. The number of shares to be issued in exchange for the Warrant
shall be the product of (x) the excess of the market price of the Common Stock
on the date of surrender of the Warrant and the exercise subscription form over
the Per Share Warrant Price and (y) the number of shares subject to issuance
upon exercise of the Warrant, divided by the market price of the Common Stock on
such date. Upon such exercise and surrender of this Warrant, the Company will
(i) issue a certificate or certificates in the name of the Holder for the number
of whole shares of the Common Stock to which the Holder shall be entitled and,
in lieu of any fractional share of the Common Stock to which the Holder shall be
entitled, pay cash equal to the fair value of such fractional share (determined
in such reasonable manner as the Board of Directors of the Company shall
determine), and (ii) deliver the other securities and properties receivable upon
the exercise of this Warrant, pursuant to the provisions of this Warrant.
2. Reservation of Warrant Shares.
The Company agrees that, prior to the expiration of this Warrant, the
Company will at all times have authorized and in reserve, and will keep
available, solely for the issuance or delivery upon the exercise of this
Warrant, such number of shares of the Common Stock and such amount of other
securities and properties as from time to time shall be deliverable to the
Holder upon the exercise of this Warrant, free and clear of all restrictions on
sale or transfer (except such as may be imposed under applicable federal and
state securities laws) and free and clear of all preemptive rights and all other
rights to purchase securities of the Company.
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3. Protection Against Dilution.
(a) If, at any time or from time to time after the date of this Warrant,
the Company shall distribute to the holders of its outstanding Common Stock, (i)
securities, other than shares of Common Stock, or (ii) property, other than cash
dividends paid in conformity with past practice, without payment therefor, with
respect to Common Stock, then, and in each such case, the Holder, upon the
exercise of this Warrant, shall be entitled to receive the securities and
property which the Holder would have held on the date of such exercise if, on
the date of this Warrant, the Holder had been the holder of record of the number
of shares of the Common Stock subscribed for upon such exercise and, during the
period from the date of this Warrant to and including the date of such exercise,
had retained such shares and the securities and properties receivable by the
Holder during such period. Notice of each such distribution shall be forthwith
mailed to the Holder.
(b) If, at any time or from time to time after the date of this Warrant,
the Company shall (i) pay a dividend or make a distribution on its capital stock
in shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares, (iii) combine its outstanding shares of 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 Per Share Warrant
Price in effect immediately prior to such action shall be adjusted so that the
Holder of any Warrant thereafter exercised shall be entitled to receive the
number of shares of Common Stock or other capital stock of the Company which he
would have owned or been entitled to receive immediately following the happening
of any of the events described above had such Warrant been exercised immediately
prior thereto. An adjustment made pursuant to this shall become effective
immediately prior thereto. An adjustment made pursuant to this subsection (b)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this subsection (b), the
holder of any Warrant 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 Holder of any Warrant promptly after such adjustment) shall determine the
allocation of the adjusted Per Share Warrant Price between or among shares of
such classes or capital stock or shares of Common Stock and other capital stock.
(c) Except as provided in 3(e), in case the Company shall hereafter issue
or sell any shares of Common Stock for a consideration per share less than the
fair market value of a share of Common Stock at such time as determined by the
reasonable judgment of the Company's Board of Directors, the Per Share Warrant
Price shall be adjusted as of the date of such issuance or sale so that the same
shall equal the price determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to such issuance or sale
multiplied by the Per Share Warrant Price plus (B) the consideration received by
the Company upon such issuance or sale by (ii) the total number of shares of
Common Stock outstanding after such issuance or sale.
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(d) Except as provided in 3(e), in case the Company shall hereafter issue
or sell any rights, options, warrants or securities convertible into Common
Stock entitling the holders thereof to purchase the Common Stock or to convert
such securities into Common Stock at a price per share (determined by dividing
(i) the total amount, if any, received or receivable by the Company in
consideration of the issuance or sale of such rights, options, warrants or
convertible securities plus the total consideration, if any, payable to the
Company upon exercise or conversion thereof (the "Total Consideration") by (ii)
the number of additional shares of Common Stock issuable upon exercise or
conversion of such securities) less than the then Per Share Warrant Price in
effect on the date of such issuance or sale, the Per Share Warrant Price shall
be adjusted as of the date of such issuance or sale so that the same shall equal
the price determined by dividing (i) the sum of (A) the number of shares of
Common Stock outstanding on the date of such issuance or sale multiplied by the
Per Share Warrant Price plus (B) Total Consideration by (ii) the number of
shares of Common Stock outstanding on the date of such issuance or sale plus the
maximum number of additional shares of Common Stock issuable upon exercise or
conversion of such securities.
(e) No adjustment in the Per Share Warrant Price shall be required in the
case of (i) the issuance of shares of Common Stock upon the exercise of options
which may be granted under the Company's Stock Option Plan as in effect on the
date hereof, or (ii) the issuance of shares pursuant to the exercise of this
Warrant or any other warrants that are being issued as of the date hereof or are
outstanding as of the date hereof.
(f) In case of 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 entity (including
any exchange effectuated in connection with a merger of any other corporation
with the Company), the Holder of this Warrant shall have the right thereafter to
convert such Warrant into the kind and amount of securities, cash or other
property which he would have owned or have been entitled to receive immediately
after such consolidation, merger, statutory exchange, sale or conveyance had
this Warrant been exercised immediately prior to the effective date of such
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 Section 3 with respect to the rights and
interests thereafter of the Holder of this Warrant to the end that the
provisions set forth in this Section 3 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 above provisions of this 3(f) shall similarly apply to successive
consolidations, mergers, statutory exchanges, sales or conveyances. Notice of
any such consolidation, merger, statutory exchange, sale or conveyance, and of
said provisions so proposed to be made, shall be mailed to the Holder not less
than 20 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.
(g) No adjustment in the Per Share Warrant Price shall be required unless
such adjustment would require an increase or decrease of at least $0.05 per
share of Common Stock;
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provided, however, that any adjustments which by reason of this (g) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment; and provided further, however, that adjustments shall be
required and made in accordance with the provisions of this Section 3 (other
than this (g)) later than such time as may be required in order to preserve the
tax-free nature of a distribution to the Holder of this Warrant or Common Stock.
All calculations under this Section 3 shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be. Anything in this Section 3
to the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Per Share Warrant Price, in addition to those required by this
Section 3, as it in its discretion shall deem to be advisable in order that any
stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
(h) Whenever the Per Share Warrant Price is adjusted as provided in this
Section 3 and upon any modification of the rights of the Holder of this Warrant
in accordance with this Section 3, the Company shall, at its own expense, within
ten (10) days of such adjustment or modification, deliver to the holder of this
Warrant a certificate of the principal financial officer of the Company setting
forth the Per Share Warrant Price and the number of Warrant Shares after such
adjustment or modification and the manner of computing the same. In addition,
within thirty (30) days of the end of the Company's fiscal year next following
any such adjustment or modification, the Company shall, at its own expense,
deliver to the Holder of this Warrant a certificate of a firm of independent
public accountants of recognized standing selected by the Board of Directors
(who may be the regular auditors of the Company) setting forth the same
information as required by such principal financial officer certificate.
(i) If the Board of Directors of the Company shall declare any dividend or
other distribution in cash with respect to the Common Stock, other than out of
earned surplus, the Company shall mail notice thereof to the Holder not less
than 10 days prior to the record date fixed for determining shareholders
entitled to participate in such dividend or other distribution.
4. Fully Paid Stock; Taxes.
The Company agrees that the shares of the Common Stock represented by each
and every certificate for Warrant Shares delivered on the exercise of this
Warrant in accordance with the terms hereof shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable and not subject
to preemptive rights or other contractual rights to purchase securities of the
Company, and the Company will take all such actions as may be necessary to
assure that the par value or stated value, if any, per share of the Common Stock
is at all times equal to or less than the then Per Share Warrant Price. The
Company further covenants and agrees that it will pay, when due and payable, any
and all federal and state stamp, original issue or similar taxes which may be
payable in respect of the issue of any Warrant Share or certificate therefor.
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5. Limited Transferability.
(a) This Warrant shall be transferable or assignable by the Holder, in
whole or in part, only (i) to any successor firm or corporation of RBB (ii) to
any of the directors, officers, employees, attorneys, consultants, partners,
agents or subsidiaries of RBB or of any such successor entity or (iii) in the
case of an individual, pursuant to such individual's last will and testament or
the laws of descent and distribution and is so transferable only upon the books
of the Company which it shall cause to be maintained for such purpose, provided,
however the transferor shall complete an Assignment in either of the forms
attached hereto as Exhibit E or Exhibit F. The Company may treat the registered
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holder of this Warrant as he or it appears on the Company's books at any time as
the Holder for all purposes. The Company shall permit any holder of a Warrant or
his duly authorized attorney, upon written request during ordinary business
hours, to inspect and copy or make extracts from its books showing the
registered holders of Warrants. All Warrants will be dated the same date as this
Warrant.
(b) By acceptance hereof, (A) the Holder represents and warrants that (i)
this Warrant is being acquired, and all Warrant Shares to be purchased upon the
exercise of this Warrant will be acquired, by the Holder solely for the account
of such Holder (or for beneficiaries' accounts over which the Holder has
investment discretion but no discretionary voting or dispositive authority) and
not with a view to the fractionalization and distribution thereof, (ii) this
Warrant will not be sold or transferred except in accordance with the applicable
provisions of the Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, and (iii) and if Holder is acquiring
this Warrant or any of the Securities or Common Stock issuable upon conversion
of the Convertible Securities for the accounts of parties other than Holder (as
contemplated above in this paragraph), Holder has full power and authority to
make the representations, warranties and agreements made pursuant to this
Warrant on behalf of the owners of such accounts, and agrees that each
representation, warranty and agreement made by Subscriber herein is also made by
and on behalf of each owner of each such account, and (B) the Holder agrees that
(i) this Warrant may not be sold to a US Person and (ii) neither this Warrant
nor any of the Warrant Shares may be sold or transferred except under cover of a
Registration Statement under the Act which is effective and current with respect
to such Warrant Shares or pursuant to an opinion, in form and substance
reasonably acceptable to the Company's counsel, that registration under the Act
is not required in connection with such sale or transfer. Any Warrant Shares
issued upon exercise of this Warrant shall bear the following legend:
"The Securities represented by this certificate have not been
registered under the Securities Act of 1933 and are restricted securities
within the meaning thereof. Such securities may not be sold or transferred
except pursuant to a Registration Statement under such Act which is
effective and current with respect to such securities or pursuant to an
opinion of counsel reasonably satisfactory to the issuer of such securities
that such sale or transfer is exempt from the registration requirements of
such Act."
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6. Loss, etc., of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder a new Warrant of like date, tenor and denomination.
7. Warrant Holder Not Shareholders.
Except as otherwise provided herein, this Warrant does not confer upon the
Holder any right to vote or to consent to or receive notice as a shareholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a shareholder, prior to the exercise hereof.
8. Communication.
No notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective and shall be
deemed to have been given if, the same is in writing and is mailed by first-
class mail, postage prepaid, addressed to:
(a) the Company at 00000 Xxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 00, Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000 or such other address as the Company has designated
in writing to the Holder; or
b) the Holder at Xxxxxxxx 00, 0000 Xxxx, Xxxxxxx, or such other
address as the Holder has designated in writing to the Company.
9. Headings.
The headings of this Warrant have been inserted as a matter of convenience
and shall not affect the construction hereof.
10. Applicable Law.
This Warrant shall be governed by and construed in accordance with the laws
of the State of New York without giving effect to the principles of conflict of
law thereof.
[Signature page follows, remainder of page intentionally blank]
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IN WITNESS WHEREOF, the Company, has caused this Warrant to be signed
by its President and its corporate seal to be hereunto affixed and attested by
its Secretary this 27/th/ day of January, 1997.
(SEAL) GOLF-TECHNOLOGY HOLDING, INC.
ATTEST:
/S/ XXXXXX X. XXXXXXXX By: /S/ XXXXXX X. XXXXXXXX
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Secretary Name: Xxxxxx X. Xxxxxxxx
Title: President
EXHIBIT A
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SUBSCRIPTION
The undersigned holder, _________________________________ pursuant to the
provisions of the within and foregoing Warrant, hereby agrees to subscribe for
and purchase _______ shares of the Common Stock of Golf-Technology Holding, Inc.
covered by said Warrant, and makes payment therefor in full at the price per
share provided by said Warrant.
Dated:_____________________ ___________________________________
Signature
Address:
____________________________________
____________________________________
____________________________________
EXHIBIT B
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NOTICE OF CONVERSION OR EXERCISE
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(To be executed by the registered holder in order to convert the share(s)
of Series C Preferred Stock or exercise Warrants, or Additional Warrants)
In accordance with that certain Regulation S Securities Subscription
Agreement (the "Subscription Agreement"), by and between RBB Bank
Aktiengesellshaft and Golf-Technology Holding, Inc. (the "Company"), dated as of
January 27, 1997, the undersigned hereby irrevocably elects to convert any of
the Convertible Securities represented by the attached certificate or agreement
into shares of common stock ("Common Stock") of the Company according to the
conditions of the Certificate of Designation of Series C Preferred Stock,
Warrant Agreement or Additional Warrant Agreement, as applicable, as of the date
written below. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Subscription Agreement. If shares are to be
issued in the name of a person other than undersigned, the undersigned will pay
all transfer taxes payable with respect thereto and is delivering herewith such
certificates. No fee will be charged to the undersigned for any conversion,
except for transfer taxes, if any.
The undersigned represents that it and each person or entity on whose
behalf it holds Convertible Securities to be converted into Common Stock (each
an "Investor"): (i) is familiar with and understands the terms, conditions and
requirements contained in Regulation S ("Regulation S") and Rule 144 promulgated
under the Securities Act of 1933, as amended (the "Act"); (ii) is not a "U.S.
Person" or "distributor" as defined in Regulation S; (iii) purchased the
Convertible Securities for which conversion is being elected, and is purchasing
the Common Stock referenced herein, for its own account and for the account of
each Investor and not for the account or benefit of any U.S. Person; (iv) will
comply with the transfer restrictions contained in Section 4(1) of the Act and
Rule 144 promulgated thereunder to the extent they are applicable; (v) has not
had a "short" position in the Company's securities at any time since the
purchase of the Securities (including any short call position or any long put
position or any contract or arrangement that had the effect of eliminating or
substantially diminishing the risk of ownership of the Securities) nor has it
engaged in any hedging transaction with respect to the Securities or the Common
Stock; (vi) has no prior understanding with respect to the sale of the Common
Stock to any third party; (vii) has not engaged in any "directed selling
efforts" (as such term is defined in Regulation S) with respect to the
Securities or the Common Stock issuable upon conversion of the Convertible
Securities; (viii) purchased the Securities with investment intent, is
purchasing the Common Stock with investment intent and presently has no intent
to sell, dispose of or otherwise transfer the Common Stock; (ix) will make any
sale, transfer or other disposition of the Common Stock in full compliance with
the Act, the Exchange Act, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder; and (x) received the
offer to purchase the Securities outside the United States and, at the time the
Subscription Agreement pursuant to which the Securities was executed was, and
upon execution of this Notice is, outside the United States. The undersigned has
obtained representations from each Investor with respect to compliance with
paragraphs (i) - (x) of this Notice.
The undersigned acknowledges and agrees that:
(I) in connection with the conversion of Preferred Stock into shares of
Common Stock :
(a) no shares of Common Stock will be issued until the original
Preferred Stock Certificate(s) to be converted and the Notice are
received by the Company's attorney or transfer agent, and
(b) the original Preferred Stock Certificate(s) to be converted and the
Notice must be received by the Company's attorney or transfer agent
by the third business day following the Date of Conversion
indicated below, or such Notice shall become null and void at the
sole discretion of the Company; and
(II) in connection with the conversion of Warrants or Additional Warrants
into shares of Common Stock:
(a) no shares of Common Stock will be issued until the Warrants or
Additional Warrants holder surrenders the original Warrant
Agreement or Additional Warrant Agreement (with the subscription
form at the end thereof duly executed);
(b) the original Warrant Agreement or Additional Warrant Agreement
(with the subscription form at the end thereof duly executed) and
the Notice must be received by the Company's attorney or transfer
agent by the third business day following the Date of Conversion
indicated below, or such Notice and subscription form shall become
null and void at the sole discretion of the Company; and
(c) the Warrant or Additional Warrant was exercised outside of the
United States and the Converted Securities will be delivered to an
address outside of the United States, as indicated below.
Conversion Formula: Date of Conversion or exercise:
Place of execution of this notice:
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Applicable Conversion Price:
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Subscriber's Name:
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Signature:
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Name:
Title:
Address:
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Address (which must be outside of the United States)
for delivery of the certificates reflecting the
Converted Securities:
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EXHIBIT C
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DEFINITION OF "U.S. PERSON"
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Pursuant to Rule 902 (c), (o) and (p) of Regulation S, the terms "U.S. person"
and "United States" are defined as follows:
(o) U.S. Person.
(1) "U.S. person" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated under
the laws of the United States;
(iii) Any estate of which any executor or administrator is a U.S.
person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the United
States;
(vi) Any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
(vii) Any discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United
States; and
(viii) Any partnership or corporation if: (A) organized or
incorporated under the laws of any foreign jurisdiction; and (B)
formed by a U.S. person principally for the purpose of investing
in securities not registered under the Securities Act of 1933, as
amended (the "Act") unless it is organized or incorporated, and
owned, by accredited investors (as defined in Rule 501(a) of the
Act) who are not natural persons, estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this rule, any discretionary
account or similar account (other than an estate or trust) held for the benefit
or account of a non-U.S. person by a dealer or other professional fiduciary
organized, incorporated, or (if an individual) resident in the United States
shall not be deemed a "U.S. person".
(3) Notwithstanding paragraph (o)(1) of this rule, any estate of which any
professional fiduciary acting as executor or administrator is a U.S. person
shall not be deemed a U.S. person if:
(i) An executor or administrator of the estate who is not a U.S.
person has sole or shared investment discretion with respect to
the assets of the estate; and
(ii) The estate is governed by foreign law.
(4) Notwithstanding paragraph (o)(1) of this rule, any trust of which any
professional fiduciary acting as trustee is a U.S. person shall not be deemed a
U.S. person if a trustee who is not a U.S. person has sole or shared investment
discretion with respect to the trust assets, and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. person.
(5) Notwithstanding paragraph (o)(l) of this rule, an employee benefit plan
established and administered in accordance with the law of a country other than
the United States and customary practices and documentation of such country
shall not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(l) of this rule, any agency or branch of
a U.S. person located outside the United States shall not be deemed a "U.S.
person" if:
(i) The agency or branch operates for valid business reasons; and
(ii) The agency or branch is engaged in the business of insurance or
banking and is subject to substantive insurance or banking
regulation, respectively, in the jurisdiction where located.
(7) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans shall not be deemed
"U.S. persons."
(p) United States. "United States" means the United States of America, its
territories and possessions, any State of the United States, and the
District of Columbia.
EXHIBIT D
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SUBSCRIPTION FOR CASHLESS WARRANT SUBSCRIPTION
The undersigned, _________________________________________________pursuant
to the provisions of the within and foregoing Warrant, hereby agrees to
subscribe to that number of shares of the Common Stock of Golf-Technology
Holding, Inc. as are issuable in accordance with the formula set forth in
paragraph 1(b) of said Warrant, and makes payment therefor in full by surrender
and delivery of said Xxxxxxx.
Dated:________________________ ______________________________
Signature
Address:
______________________________
______________________________
______________________________
EXHIBIT E
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ASSIGNMENT
FOR VALUE RECEIVED, _______________________________hereby sells, assigns
and transfers unto the within and foregoing Warrant and all rights evidenced
thereby, and does irrevocably constitute and appoint
_________________________attorney, to transfer said Warrant on the books of
Golf-Technology Holding, Inc.
Dated:________________________ ______________________________
Signature
Address
______________________________
______________________________
______________________________
EXHIBIT F
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED,_________________________________ hereby assigns and
transfers unto _________________________________________________the right to
purchase __________ shares of the Common Stock of Golf-Technology Holding, Inc.
the right to purchase _________ shares of the Common Stock of Golf-Technology
Holding, Inc. by the foregoing Warrant, and a proportionate part of said Warrant
and the rights evidenced hereby, and does irrevocably constitute and appoint
___________________________________________ attorney, to transfer that part of
said Warrant on the books of Golf-Technology Holding, Inc.
Dated:________________________ ______________________________
Signature
Address
______________________________
______________________________
______________________________
