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Exhibit 10.27
LOAN AGREEMENT
This Loan Agreement (this "AGREEMENT") is made this ---- day of May, 1998
by and between ---------------------("LENDER") and Golf One Industries, Inc.
("BORROWER"), with reference to the following facts:
A. Borrower is an experienced investor who from time to time provides
funds to privately held, development stage companies.
B. Borrower is seeking up to a maximum of $2,500,000 of secured debt
financing in order to, among other things, retire certain outstanding
indebtedness, pay certain accounts payable, make a loan to Xxxx Xxxxxx Golf,
Inc. and effect an initial public offering of its Common Stock ("IPO").
C. On the terms and subject to the conditions of this Agreement, Lender is
willing to provide $----- of such financing.
NOW, THEREFORE, with reference to the foregoing facts and in consideration
of the covenants and agreements hereinafter set forth, Lender and Borrower agree
as follows:
1. LOAN
(a) Lender has concurrently herewith made to Borrower a loan (the "LOAN")
in the principal amount of $----. In consideration of the Loan, Borrower: (i)
has executed and delivered to Lender: (A) a note (the "NOTE"); (B) a security
agreement (the "SECURITY AGREEMENT"); and (C) -------- shares (the "SHARES") of
its Common Stock.
(b) If the number of Shares (as adjusted for any stock dividend, reverse
stock split or stock split of the Company's Common Stock after the date hereof
and prior to the IPO) multiplied by the initial public offering price of the
Common Stock in the IPO (the "IPO PRICE") shall be different than $------, or
50% of principal amount of Note, Borrower and Lender shall adjust the number of
Shares (either by Borrower issuing more shares or Lender tendering shares to the
Company) so that the number of Shares shall equal $------ divided by the IPO
Price, rounded to the nearest whole number of shares as adjusted.
(c) In the event the IPO is not consummated by September 30, 1998, Lender
shall issue to Borrower ------ shares of Lender's Common Stock (the "September
Shares"). If the number of September Shares (as adjusted for any stock dividend,
reverse stock split or stock split of the Company's Common Stock after the date
hereof and prior to the IPO) multiplied by the IPO Price shall be different than
$------, or 5% of the principal amount of the Note, Borrower and Lender shall
adjust the number of Shares (either by Borrower issuing more shares or Lender
tendering shares to the Company) so that the number of Shares shall equal
$------ divided by the IPO Price, rounded to the nearest whole number of shares
as adjusted.
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(d) In the event the IPO is not consummated by November 30, 1998, Lender
shall issue to Borrower ____ shares of Lender's Common Stock (the "November
Shares"). If the number of November Shares (as adjusted for any stock dividend,
reverse stock split or stock split of the Company's Common Stock after the date
hereof and prior to the IPO) multiplied by the IPO Price shall be different
than $_____, or 5% of principal amount of Note, Borrower and Lender shall
adjust the number of Shares (either by Borrower issuing more shares or Lender
tendering shares to the Company) so that the number of Shares shall equal
$______ divided by the IPO Price, rounded to the nearest whole number of shares
as adjusted.
2. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"SECURITIES" shall mean the Note, the Shares (including any shares of
Common Stock issued pursuant to Section 1(b), (c) or (d) of this Agreement),
and any shares issued as a result of any stock split or stock dividend with
respect to such Shares.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SENIOR FINANCING" shall mean the up to $2,500,000 of debt financing
obtained by Borrower after March 1, 1998, which indebtedness is secured by
substantially all of the assets of Borrower.
"SENIOR LENDERS" shall mean the Lender and the other lenders who provide
the Senior Financing.
"TRANSACTION DOCUMENTS" shall mean this Agreement, the Note and the
Security Agreement.
"TRANSFER" shall mean sell, assign, transfer, pledge, grant a security
interest in, or otherwise dispose of, with or without consideration.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower represents and warrants to Lender that:
(a) Borrower is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and is duly qualified as a foreign
corporation in good standing under the laws of each jurisdiction in which it is
required to be qualified because of the business it conducts or the property
that it owns.
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(b) Borrower has the necessary power, authority and legal right to own or
lease its assets and to engage in its business as now conducted, it has the
necessary power, authority and legal right to enter into and perform the
obligations imposed by the Transaction Documents. The execution and performance
of this Agreement has been duly authorized by all necessary corporate
proceedings.
(c) Each Transaction Document is a valid and binding obligation of
Borrower, enforceable against the Borrower in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights
generally, and to the availability of equitable remedies.
(d) The execution and delivery of the Transaction Documents will not
conflict with, result in a breach of any provision of, or constitute a default
(or an event which would constitute a default upon the giving of any required
notice or upon a lapse of time) under Borrower's Certificate of Incorporation,
By-laws, or the provisions of any agreement, contract or administrative order,
consent decree or other instrument to which the Borrower is a party.
(e) There are no actions, suits or proceedings, pending or threatened,
against the Borrower in any court or before any administrative agency, which
would prevent the Borrower from completing the transactions provided for in
this Agreement.
(f) The authorized capital stock of the Borrower consists of 5,000,000
shares of Preferred Stock and 10,000,000 shares of Common Stock. The Board of
Directors has created two series of Preferred Stock out of the authorized
preferred stock, consisting of 191,579 shares designated as Series A
Convertible Preferred Stock ("SERIES A PREFERRED") and 750,750 shares
designated as Series B Convertible Preferred Stock ("SERIES B PREFERRED"). As
of March 1, 1998, no shares of Series A Preferred were outstanding, 572,649.25
shares of Series B Preferred were outstanding, and 3,246,289 shares of Common
Stock were outstanding. Other than the Series B Preferred and options to
purchase 602,500 shares of the Company's Common Stock and 1,025,282 Class A
warrants to purchase 512,641 shares of the Company's Common Stock and 180,000
Class B warrants to purchase 90,000 shares of the Company's Common Stock, there
are no outstanding securities of the Borrower that are convertible into Common
Stock of the Company.
(g) Disclosure Documents. The Borrower has furnished each Purchaser with a
true and complete copy of the Borrower's financial statements as of March 31,
1998 (the "Financial Statements"). Except as disclosed in the Financial
Statements, since March 31, 1998 the Borrower has not incurred any material
liability except in the ordinary course of its business consistent with past
practice and there has not been any change in the business, financial condition
or results of operations of the Borrower which has had a material adverse
effect on the Borrower. The Financial Statements are accurate, complete and
have been prepared in accordance with the books and records of the Borrower and
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved ("GAAP") (except as may be
indicated in the notes thereto) and fairly present (subject, in the
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case of the unaudited statements, to normal, recurring audit adjustments that
are not material) the consolidated financial position of the Borrower as at the
dates thereof and the consolidated results of its operations and cash flows for
the periods then ended; provided however, each Purchaser acknowledges that the
Financial Statements do not have attached the requisite "Notes to the Financial
Statements" required by GAAP.
(h) Other Agreements. The Borrower has furnished each Purchaser with a
true and complete copy of the Letter of Intent with respect to a proposed
public offering of Common Stock of the Borrower with Whale Securities Co., L.P.
dated January 20, 1998. As of the date hereof, the Borrower has not received
any notice either orally or in writing from Whale of its intent to terminate
its efforts on behalf of the Borrower with respect to the initial public
offering of the Borrower's Common Stock. The Borrower has also furnished each
purchaser with a true and complete copy of the Borrower's Strategic Plan as of
March 1, 1998. The Strategic Plan discloses on page 2 that the Borrower executed
an Asset Purchase Agreement with the Xxxx Xxxxxx Group, Inc. ("GPG") on
November 1, 1997 to acquire the principal assets and assume certain liabilities
of GPG. As of the date hereof, there does not exist any default under the Asset
Purchase Agreement by either the Borrower or GPG and neither the Borrower nor
GPG have notified either party, either in writing or orally of any intention to
terminate the Asset Purchase Agreement. Furthermore, the terms of the
acquisition of the assets of Xxxx Xxxxxx Golf Equipment Co. from GPG are as set
forth on page 5 of the Strategic Plan. In addition, in November of 1996, the
Borrower and GPG entered into a 20 year direct marketing agreement with the GPG
which authorized the Company to sell on an exclusive basis, golf clubs,
accessories and apparel only through direct marketing channels in the United
States and Canada (hereinafter the "GPG License Agreement"). As of the date
hereof, with respect to the GPG License Agreement (i) it is in full force and
effect; (ii) there exists no defaults thereunder and (iii) neither the Borrower
nor GPG have notified either party, either in writing or orally of any intention
to terminate the GPG License Agreement.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF LENDER
Lender represents and warrants to, and agrees with, Borrower as follows:
(a) Lender is acquiring the Securities for its own account, for
investment purposes only.
(b) Lender understands that an investment in the Securities involves a
high degree of risk, and Lender has the financial ability to bear the economic
risk of this investment in the Securities, including a complete loss of such
investment. Lender has adequate means for providing for its current financial
needs and has no need for liquidity with respect to this investment.
(c) Lender is an "accredited investor" as that term is defined in Rule
501(a) under Regulation D promulgated pursuant to the Securities Act.
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(d) Lender has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Securities and in protecting its own interest in connection with this
transaction.
(e) Lender understands that the Securities have not been registered under
the Securities Act or under any state securities laws. Lender is familiar with
the provisions of the Securities Act and Rule 144 thereunder and understands
that the restrictions on Transfer placed on Securities may result in Lender
being required to hold the Securities for an indefinite period of time.
(f) Neither Lender nor any affiliate of Lender is a "member" of the NASD
nor a controlling shareholder of, a "person associated with" or an "associated
person of" a member of the NASD (as such terms are defined in the NASD rules).
Lender agrees to furnish such information regarding its relationship to an
underwriter(s) in the IPO and any NASD member and any other information
regarding Lender required to be furnished to the NASD in connection with the
IPO.
(g) Lender believes that it has received all the information it considers
necessary or appropriate for deciding whether to invest in the Securities, and
Lender has had an opportunity to ask questions and receive answers from Borrower
and its officers and directors regarding the business, prospects and financial
condition of Borrower.
(h) Lender agrees not to Transfer any of the Securities except pursuant to
an effective registration statement under the Securities Act or an exemption
from registration. As a further condition to any such Transfer, except in the
event that such Transfer is made pursuant to an effective registration statement
under the Securities Act, if in the reasonable opinion of counsel to Borrower
any Transfer of the Securities by the contemplated transferee thereof would not
be exempt from the registration and prospectus delivery requirements of the
Securities Act, Borrower may require the contemplated transferee to furnish
Borrower with an investment letter setting forth such information and agreements
as may be reasonable requested by Borrower to ensure compliance by such
transferee with the Securities Act.
Each certificate evidencing the Securities will bear the following legend:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL PURCHASER OF THE SECURITIES, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER."
(i) Lender agrees not to Transfer any Shares for a twelve month period
commencing with the effective date (the "EFFECTIVE DATE") of the registration
statement filed by Borrower in connection with the IPO except with the prior
written consent of the representative or
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representatives (the "REPRESENTATIVE") of the underwriters in connection with
the IPO and the written consent of the Company. In addition, Lender may not
transfer any Shares prior to the Effective Date unless the transferee shall
have agreed in writing to the restrictions on Transfer set forth in this
section. Lender agrees to execute such written agreement as may be requested by
the Representative to confirm its agreements under this Section.
(j) Lender, on behalf of itself and its directors, officers, employees,
representatives and agents (the "LENDER PARTIES"), agrees to hold the
Confidential Information in strictest confidence, to not disclose the
Confidential Information to any person, and to not to utilize the Confidential
Information other than in connection with the transactions contemplated by this
Agreement. If any Lender Party becomes legally compelled to disclose any of the
Confidential Information, the Lender Party will provide to Borrower prompt
written notice before such information is disclosed so that Borrower (with
Lender's reasonable cooperation) may seek an appropriate protective order or
other remedy. If a protective order or other remedy is not obtained, the Lender
Party will furnish only that portion of the information which it is legally
compelled to disclose and will exercise its best efforts to assist Borrower in
obtaining assurance that the recipient of such Confidential Information will
maintain the confidentiality of such Information.
"CONFIDENTIAL INFORMATION" means all information concerning or relating to
the business and operation of Borrower and its subsidiaries including without
limitation, information concerning the business, markets, strategies,
intellectual property, assets, liabilities, financial condition and identity of
its shareholders. Notwithstanding the foregoing, nothing in this Agreement
prohibits or in any way restricts any Lender Party from using, disclosing or
otherwise dealing with: (i) information which at the time of its disclosure is
or which thereafter becomes through no fault of any Lender Party, generally
available to the general public by publication or otherwise; (ii) information
which the Lender Party could show was in its possession at the time of
disclosure; or (iii) information on which can be shown to become available on a
non-confidential basis from a source other than Borrower.
(k) Lender, if an individual, is a resident of the state in which his
address on the signature page of this Agreement, or if an entity, has either
its principal office, or the office at which it has received the offer to
purchase the Securities, and has purchased the Securities, in the state in its
address on the signature page of this Agreement.
5. USURY
Lender acknowledges that Borrower has advised Lender that the amount of
interest paid by Borrower to Lender in this Loan would exceed the maximum rate
of interest permitted under the laws of the state of California and is
therefore usurious. The Company hereby waives any right to a defense of payment
of interest on the Note as a result of usury and agrees not to assert such
defense in any action or proceeding to enforce the Note. Lender acknowledges
and understands that the Company makes no representation that under California
law such waiver and
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agreement are enforceable against the Company. Lender further represents and
warrants that Lender is aware of the legal ramifications of the Note being
determined to be usurious.
6. MISCELLANEOUS
(a) Notices. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, postage prepaid,
addressed to the party at the address set forth on the signature page of this
Agreement. Any Notice, other than a Notice sent by registered or certified mail,
shall be effective when received; a Notice sent by registered or certified mail,
postage prepaid return receipt requested, shall be effective on the earlier of
when received or the fifth day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein.
(c) Successors. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors, heirs
and personal representatives.
(d) Waiver and Amendment. No provision of this Agreement may be waived
unless in writing signed by all the parties to this Agreement, and waiver of any
one provision of this Agreement shall not be deemed to be a waiver of any other
provision. This Agreement may be amended only by a written agreement executed by
all of the parties to this Agreement.
(e) Governing Law; Consent to Jurisdiction. THIS AGREEMENT AND THE NOTE
SHALL BE GOVERNED IN ALL RESPECTS BY THE LAW OF THE STATE OF NEW JERSEY AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
JERSEY.
Any and all judicial proceedings brought by the Lender against the Borrower
with respect to this Agreement and the Note may be brought in any court of
competent jurisdiction in the State of New Jersey and any Federal district court
having subject matter jurisdiction and being located in the State of New
Jersey. The Borrower hereby accepts, for itself and its properties, the
non-exclusive jurisdiction of the aforesaid courts and agrees to be bound by any
judgments rendered by such courts in connection with this Agreement. The
Borrower will not move to transfer any such proceeding to any different court.
Any such process may be mailed by registered or certified mail to the Borrower
at the address referred to on the signature page hereof. Nothing herein limits
the right of the Lender to bring proceedings against the Borrower in the courts
of any other jurisdiction.
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(f) Captions. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(h) Attorneys' Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees to be fixed by the court.
(i) Rules of Construction. Borrower, Lender and their respective counsel
have reviewed and revised the Transaction Documents. The normal rule of
construction providing that ambiguities are to be resolved against the drafting
party shall not be employed in interpreting the Transaction Documents.
IN WITNESS WHEREOF, the Borrower and the Lender have duly executed this
Agreement as of the day and year first above written.
BORROWER: LENDER:
GOLF ONE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxxxxx, President
Address: Address:
0000 Xxxxxxx
Xxxxx Xxxxx, XX 00000
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL PURCHASER OF THE SECURITIES, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER.
SECURED PROMISSORY NOTE
Santa Maria, California Principal Amount: $____________
May __, 1998
FOR VALUE RECEIVED Golf One Industries, Inc., a Delaware corporation, having an
address of 0000 Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 ("BORROWER"),
unconditionally promises to pay to _______________________, or registered
assigns, ("LENDER") ______________________ together with interest thereon at a
rate of 13.5% per annum from the date hereof. This Note is issued pursuant to
that certain Loan Agreement between Lender and Borrower dated the date hereof
(the "LOAN AGREEMENT"), and is part of a group of notes (the "NOTES") in a
aggregate principal amount of up to $2.5 million issued as part of the Senior
Financing (as defined in the Loan Agreement). Unless otherwise defined herein,
capitalized terms used in this Note shall have the meanings ascribed to them in
the Loan Agreement.
1. Payments: Maturity Date. The principal and interest of this Note shall be
payable on the earlier of (a) the third business day after the closing of the
IPO; or, (b) December 31, 1998 (the "MATURITY DATE"). All payments shall be
sent to Lender's address as set forth in the Loan Agreement, or such address as
later specified by lender or any successor in writing to Borrower.
2. Prepayment. Borrower may prepay any amounts due hereunder without penalty
or premium.
3. Security. To secure payment of the Note, Borrower has executed and
delivered a Security Agreement in favor of the Lender.
4. Default. Any of the following occurrences or acts shall constitute an
event of default ("Event of Default") under this Note:
(a) The failure by the Borrower to pay all or any part of the principal
or any accrued and unpaid interest on this Note within five (5) days of when
due; or
(b) Any material default, breach or misrepresentation under the terms and
provisions of the Loan Agreement not cured within twenty (20) days of notice of
such default, breach or misrepresentation; or
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(c) Insolvency of, business failure of, or an assignment for the benefit
of creditors by or the filing of a petition under bankruptcy, insolvency or
debtor's relief law, or for any readjustment of indebtedness, composition or
extension by the Borrower, or commenced against the Borrower which is not
discharged within sixty (60) days; or
(d) The receipt by Borrower of notice (either in writing or orally) of
termination or cancellation of the Asset Purchase Agreement between Xxxx Xxxxxx
Group, Inc. ("GPG") and Borrower; or
(e) The receipt by Borrower of notice (either in writing or orally) of
termination or cancellation of the Direct Marketing Agreement between the
Borrower and GPG entered into in November 1996; or
(f) Receipt of notice (either in writing or orally) of Whale Securities
Co., L.P.'s intent to terminate its efforts on behalf of the Borrower with
respect to the initial public offering of the Borrower's common stock; unless
the Borrower is able to secure a commitment from an alternative underwriter of
equal of better standing in the financial community within 45 days of notice of
termination by Whale.
5. Remedies upon Event of Default. Upon the occurrence of an Event of Default:
(a) Specified in clause (c) of Section 4, then the Note shall be
automatically accelerated and immediately due and payable;
(b) Specified in clauses (a), (b), (d), (e) or (f) of Section 4, then the
Lender may declare the Note immediately accelerated, due and payable; and
(c) The Lender shall have all of the rights and remedies, at law and in
equity, by statute or otherwise, and no remedy herein conferred upon the Lender
is intended to be exclusive of any other remedy and each remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law, in, equity, by statute or otherwise.
(d) Any action taken by Lender with respect to the Collateral (as that
term is defined in that certain Security Agreement between Borrower and the
"Senior Lenders", including the Lender, dated the date hereof (the "Security
Agreement")) shall be subject to Section 3(b) of such Security Agreement.
6. Application of Payment. All payments made under this Note shall be applied
first against payment of interest accrued to the date of any payment and then
against principal due.
7. Waiver of Presentment, etc. The Borrower hereby waives presentment for
payment, demand, notice of dishonor, and notice of protest of this Note. The
Borrower hereby consents to any extensions of time, renewals, waivers or
modifications that may be granted by the Lender with respect to the payment or
other provisions of this Note.
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8. Costs of collection. Borrower shall pay all costs of collection of Lender,
together with reasonable attorney's fees and costs, to enforce this Note in
the event of a default whether or not a suit is brought. Borrower waives
demand, protest and notice of maturity and non-payment, and all requirements
necessary to hold Borrower liable hereunder.
9. Miscellaneous. THIS NOTE SHALL BE GOVERNED IN ALL RESPECTS BY THE LAW OF
THE STATE OF NEW JERSEY AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW JERSEY.
Any and all judicial proceedings brought by the Lender against the
Borrower with respect to this Note may be brought in any court of competent
jurisdiction in the State of New Jersey and any Federal district court having
subject matter jurisdiction and being located in the State of New Jersey. The
Borrower hereby accepts, for itself and its properties, the non-exclusive
jurisdiction of the aforesaid courts and agrees to be bound by any judgments
rendered by such courts in connection with this Agreement. The Borrower will
not move to transfer any such proceeding to any different court. Any such
process may be mailed by registered or certified mail to the Borrower at the
address referred to in Section 6 of the Loan Agreement. The Borrower agrees
that service by mail will constitute sufficient notice. Nothing herein limits
the right of the Lender to bring proceedings against the Borrower in the courts
of any other jurisdiction.
BORROWER:
Golf One Industries, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President
