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EXHIBIT 10.59
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of February 5, 1997 between BRASSIE GOLF CORPORATION,
a Delaware corporation (the "Company"), and PYRAMID INVESTMENTS LLC (hereinafter
referred to as the "Holder").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to the Holder (or its permitted assigns)
a warrant (the "Warrant") to purchase up to 400,000 shares of common stock of
the Company ("Common Stock") (one share of Common Stock is hereinafter referred
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to as a "Security" and more than one share of Common Stock is hereinafter
referred to collectively as the "Securities"); and
WHEREAS, the Warrant will be issued on the date hereof by the Company to the
Holder pursuant to a Letter Agreement dated February 5, 1997 between the Company
and the Holder.
NOW, THEREFORE, in consideration of the premises, the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All terms not specifically defined in the Warrant
Certificate shall have the meanings ascribed to them in this Agreement.
2. Grant. The Holder is hereby granted the right to purchase up to 400,000
Securities at any time during the period commencing at 9:00 A.M.,
Eastern Standard Time on February 5, 1997 (the "Effective Date") and
ending on February 4, 2000.
3. Exercise Price.
3.1 Initial Exercise Price. The initial exercise price per security (the
"Initial Exercise Price) (subject to adjustment as provided in Section
9 hereof) shall be $1.25 (U.S.) per Security.
3.2 Adjusted Exercise Price. The adjusted exercise price shall be the price
which shall result from time to time from any and all adjustments to
the Exercise Price in accordance with the provisions of Section 9
hereof (the "Adjusted Exercise Price").
3.3 Exercise Price. The term "Exercise Price" herein shall mean the Initial
Exercise Price or the Adjusted Exercise price, depending upon the
context.
4. Termination. This Agreement shall terminate at 5:00 P.M., Eastern
Standard Time on February 4, 2000.
5. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement
shall be in the form set forth in Exhibit A, attached
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hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions, and other variations as required or permitted
by this Agreement.
6. Exercise of Warrant.
6.1 Initial Exercise Price. The Warrant initially is exercisable at the
Initial Exercise Price (subject to adjustment as provided in Section 9
hereof) per Security multiplied by the number of Securities being
purchased (the "Purchase Price") payable in cash as set forth in
Section 6.1.1.
6.1.1 Cash Exercise. Payment shall be made in United States Dollars by wire
transfer of immediately available funds or certified or official bank
check in New York Clearing House funds.
6.2 Surrender of Warrant Certificate. Upon surrender of a Warrant
Certificate, together with payment of the Purchase price for the
Securities purchased, at the Company's principal office at 0000 X
Xxxxxxxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx the registered holder of a Warrant
Certificate ("Holder" or "Holders") shall be entitled to receive a
certificate or certificates for the Securities so purchased. The
purchase rights represented by each Warrant Certificate are exercisable
at the option of the Holder thereof, in whole or in part (but not as to
fractional Securities). In case of the purchase of less than all the
Securities purchasable under any Warrant Certificate, the Company shall
cancel said Warrant Certificate upon the surrender thereof and shall
execute and deliver a new Warrant Certificate of like tenor for the
balance of the Securities purchasable thereunder.
7. Issuance of Certificates. Upon the exercise of the Warrant, the
issuance of certificates for shares of Common Stock or other
securities, properties or rights underlying the Warrant, the issuance
of certificates for shares of Common Stock shall be made forthwith (and
in any event within five (5) business days thereafter) without charge
to the Holder thereof including, without limitation, any tax which may
be payable in respect of the issuance thereof, and such certificates
shall (subject to the provisions of Section 8 hereof) be issued in the
name of, or in such names as may be directed by, the Holder thereof;
provided, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and
delivery of any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax
or shall have established to the satisfaction of the Company that such
tax has been paid.
8. Regulation S Restrictions. Exercise of this Warrant and acceptance of
shares of Common Stock upon such exercise shall constitute an agreement
by the holder not to offer or sell such shares in the United States, to
a U.S. Person (as such term is defined in Regulation S promulgated
under the Securities Act of 1933, as amended ("Regulation S") or for
the account or benefit of a U.S. Person during the period commencing on
the date on which it exercises the Warrant and ending on the day
following any applicable restrictive period under
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Regulation S. At the time this Warrant is exercised, the Company may
require the holder to state in the notice of exercise such reasonable
representations concerning the holder as are necessary or appropriate
to assure compliance by the holder with Regulation S. The certificates
representing the shares of Common Stock issued upon exercise of this
Warrant shall bear solely the following legend:
"The shares of Common Stock of Brassie Golf Corporation
represented hereby have been issued pursuant to Regulation S,
promulgated under the United States Securities Act of 1933, as
amended (the "Act") and have not been registered under the Act
or any applicable state securities laws. These shares may not
be offered or sold within the United States or to or for the
account of a "U.S. Person" as that term is defined in
Regulation S during the period commencing on the date of
issuance hereof and ending [add then Applicable Restricted
Period for nonaffiliates] days thereafter."
9. Adjustments to Exercise Price and Number of Securities. The rights
evidenced by the Warrant are to purchase common stock of the company as
it was constituted on February 5, 1997 ("Common Stock"). If there
shall, prior to the exercise of any of the rights evidenced by the
Warrant, be any reorganization of the authorized capital of the Company
by way of consolidation, merger, sub-division, amalgamation,
stock-split, reverse stock-split, or otherwise, or the payment of any
stock dividends, then there shall automatically be an adjustment in
either or both the number of shares of the Company which may be
purchased pursuant to the Warrant or the price at which such shares may
be purchased pursuant to the Warrant or the price at which such shares
may be purchased, by corresponding amounts, so that the rights
evidenced by the Warrant shall thereafter be as reasonably as possible
equivalent to those originally granted by the Warrant. The Company
shall have the sole and exclusive power to make adjustments as it
considers necessary and desirable.
10. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof
by the registered Holder at the principal executive office of the
Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of
Securities in such denominations as shall be designated by the Holder
thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonable satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonable satisfactory to it, and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon
surrender and cancellation of the Warrants, if mutilated, the Company
will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof.
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11. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue
scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of shares of
Common Stock or other securities, properties or rights.
12. Reservation of Securities. During the term of this Agreement, (i) the
Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrant such number of shares of Common Stock
as shall be issuable upon the exercise thereof and (ii) the Company
covenants and agrees that, upon exercise of the Warrant and payment of
the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive or
similar rights of any stockholder.
13. Notices to Warrant Holder. Nothing contained in this Agreement shall be
construed as conferring upon the Holder the right to vote or to consent
or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as
having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrant or their
exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of
current or retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of
capital stock of the Company, or any option, right or warrant
to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and
business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written
notice of such event at lease ten (10) days prior to the date fixed as
a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription
rights, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale. Such notice shall specify such record date or the
date of closing the transfer books, as the case may be. Failure to give
such notice
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or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or
the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
14. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly
made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to the registered Holder of the Warrant, to the address of
such Holder as shown on the books of the Company; or
(b) If the Company, to the address referred to in Section 6 hereof
or to such other address as the Company may designate by
notice to the Holder.
15. Supplements and Amendments. This Agreement may not be amended except in
writing signed by the Company and the Holder.
16. Successors. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holder and
their respective successors and permitted assigns hereunder.
17. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be construed in accordance
with the laws of said State without giving effect to the rules of said
State governing the conflicts of laws.
18. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company
and the Holder(s) of the warrant Certificates or Securities any legal
or equitable right, remedy or claim under this Agreement; and this
Agreement shall be for the sole and exclusive benefit of the Company
and the Holder(s) of the Warrant Certificates or Securities.
19. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such shall together constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the date and year first above written.
BRASSIE GOLF CORPORATION
By: /s/ Xxxxx XxXxxxx
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Title: Vice President
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Field Secretaries (Cayman) Limited
as Secretary of
PYRAMID INVESTMENTS LLC
By: /s/ Xxxxx Xx Xxx
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Name: Xxxxx Xx Xxx
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Title: Manager Mutual Funds
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Field Secretaries (Cayman) Limited
as Secretary of
PYRAMID INVESTMENTS LLC
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Assistant Manager Mutual Funds
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