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EXHIBIT 10.20
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FORM OF
WARRANT AGREEMENT
By and Between
NASHVILLE COUNTRY CLUB, INC.
and
XXXXXXXX XXXXXX REFSNES, INC.
Dated as of June __, 1997
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WARRANT AGREEMENT
WARRANT AGREEMENT dated as of June __, 1997 by and between
NASHVILLE COUNTRY CLUB, INC., a Tennessee corporation (the "Company"), and
XXXXXXXX XXXXXX REFSNES, INC. (the "Placement Agent").
The Company proposes to issue to the Placement Agent warrants
as hereinafter described (the "Placement Agent Warrants") to purchase [an
amount of shares equal to 5% of the shares of common stock sold], subject to
adjustment as provided in Section 8 hereof (such shares, as adjusted, being
hereinafter referred to as the "Shares") of the Company's Common Stock, no par
value per share (the "Common Stock"), each Placement Agent Warrant entitling
the holder thereof to purchase one share of Common Stock. All capitalized
terms used herein and not otherwise defined herein shall have the same meanings
as in that certain Placement Agency Agreement, of even date herewith, by and
between the Company and the Placement Agent (the "Placement Agency Agreement").
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth and for other good and valuable
consideration, the parties hereto agree as follows:
1. Issuance of Warrants; Form of Warrant. The Company will
issue, sell and deliver the Placement Agent Warrants to the Placement Agent or
its bona fide officers and/or directors. The form of the Placement Agent
Warrant and the form of election to purchase Shares to be attached thereto
shall be substantially as set forth on Exhibit A attached hereto. The
Placement Agent Warrants shall be executed on behalf of the Company by the
manual or facsimile signature of the present or any future Chairman of the
Board, Chief Executive Officer or any Vice President of the Company, and
attested by the manual or facsimile signature of the present or any future
Secretary or Assistant Secretary of the Company.
2. Registration. The Placement Agent Warrants shall be
numbered and shall be registered in a Placement Agent Warrant register to be
maintained by the Company (the "Placement Agent Warrant Register"). The
Company shall be entitled to treat the registered holder of any Placement Agent
Warrant on the Placement Agent Warrant Register (the "Holder") as the owner in
fact thereof for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in such Placement Agent Warrant on the part of
any other person, and shall not be liable for any registration of transfer of
the Placement Agent Warrants which are registered or are to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration of transfer, or with such knowledge of such facts
that its participation therein amounts to bad faith. The Placement Agent
Warrants shall be registered initially in the name of "Xxxxxxxx Xxxxxx Refsnes,
Inc." in such denominations as the Placement Agent may request in writing to
the Company; provided, however, that the
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Placement Agent may designate that all or a portion of the Placement Agent
Warrants be issued in varying amounts directly to its bona fide officers and/or
directors, and not to the Placement Agent. Such designation will only be made
by the Placement Agent if it determines that such issuances would not violate
the rules of the National Association of Securities Dealers, Inc. (the "NASD")
relating to the review of corporate financing arrangements.
3. Transfer of Warrants. The Placement Agent Warrants will
not be sold, transferred, assigned or hypothecated, in part or in whole (other
than by will or pursuant to the laws of descent and distribution), except to
bona fide officers of the Placement Agent and only upon delivery thereof duly
endorsed by the Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. Furthermore, if any Placement Agent Warrants are transferred after
two years following the effective date of the Registration Statement, such
warrants shall be exercised immediately upon transfer, and if not exercised
immediately upon transfer, such warrants shall lapse. In all cases of transfer
by an attorney, the original power of attorney, duly approved, or an official
copy thereof, duly certified, shall be deposited with the Company. In case of
transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited with the Company in its
discretion. Upon any registration of transfer, the Company shall deliver a new
Placement Agent Warrant or Placement Agent Warrants to the persons entitled
thereto. The Placement Agent Warrants may be exchanged at the option of the
Holder thereof for another Placement Agent Warrant, or other Placement Agent
Warrants, of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Common Stock upon
surrender to the Company or its duly authorized agent. Notwithstanding the
foregoing, the Company shall have no obligation to cause the Placement Agent
Warrants to be transferred on its books to any person, if such transfer would
violate the Securities Act of 1933, as amended (the "Act") or any applicable
state securities laws.
4. Term of Warrants; Exercise of Warrants. (a) Each
Placement Agent Warrant entitles the registered owner thereof to purchase one
Share at a purchase price of $___ per Share [120% of the purchase price set
forth on the cover page of the Prospectus] (the "Exercise Price") at any time
from the first anniversary of the effective date of the Registration Statement
until 5:00 p.m., Eastern Standard Time, on June __, 2002 [five years from the
effective date of the Registration Statement](the "Warrant Expiration Date").
Prior to the Warrant Expiration Date, the Company will not take any action
which would terminate the Placement Agent Warrants. The Exercise Price and the
Shares issuable upon exercise of the Placement Agent Warrants are subject to
adjustment upon the occurrence of certain events, pursuant to the provisions of
Section 8 of this Agreement. Subject to the provisions of this Agreement, each
Holder shall have the right, which may be exercised as set forth in such
Placement Agent Warrants, to purchase from the Company (and the Company shall
issue and sell to such Holder) the number of fully paid and nonassessable
shares of Common Stock specified in such Placement Agent Warrant as follows:
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(i) Upon surrender to the Company, or its duly authorized
agent, of such Placement Agent Warrants with the form of election to
purchase attached thereto duly completed and signed, with signatures
guaranteed by a member firm of a national securities exchange, a
commercial bank or trust company located in the United States or a
member of the NASD and upon payment to the Company of the Exercise
Price, as adjusted in accordance with the provisions of Section 8 of
this Agreement, for the number of Shares in respect of which such
Placement Agent Warrants are then exercised. Payment of such Exercise
Price may be made in cash or by cashier's check payable to the order
of the Company. No adjustment shall be made for any dividends on any
Shares issuable upon exercise of a Placement Agent Warrant; or
(ii) Upon surrender to the Company, or its duly authorized agent,
of such Placement Agent Warrants with the form of cashless exercise
attached thereto (a "Cashless Exercise"), duly completed and signed,
with signatures guaranteed by a member firm of a national securities
exchange, a commercial bank or trust company located in the United
States or a member of the NASD. Such surrender shall be deemed a
waiver of the obligation of the Holder to pay all or any portion of
the Exercise Price. In the event of a Cashless Exercise, the Holder
shall receive that number of shares of Common Stock determined by
multiplying the number of Shares in respect of which such Placement
Agent Warrants are then exercised by a fraction, the numerator of
which shall be an amount equal to the Current Market Price (as such
term is defined in Section 8(d) hereof) per share of Common Stock less
the Exercise Price, as adjusted in accordance with the provisions of
Section 8 of this Agreement, and the denominator of which shall be the
Current Market Price per share of Common Stock. Notwithstanding the
foregoing, in the event that a Cashless Exercise would, at any time
the Placement Agent Warrants remain outstanding, reasonably be deemed
by the Company's independent certified public accountants to give rise
to a charge to the Company's earnings for reporting purposes (which
determination shall be evidenced by an opinion of such independent
certified accountants, in a form reasonably satisfactory to the
Holder), the Holder shall not be entitled to use a Cashless Exercise.
(b) Upon each surrender of the Placement Agent Warrants in
accordance with Section 4(a)(i) or 4(a)(ii) hereof, the Company shall issue and
cause to be delivered with all reasonable dispatch to or upon the written order
of the Holder of such Placement Agent Warrants and in such name or names as
such Holder may designate (so long as surrender or transfer would not violate
the Act or any applicable state securities laws), a certificate or certificates
for the number of full Shares so purchased upon the exercise of such Placement
Agent Warrants, together with cash, as provided in Section 9 of this Agreement,
in respect of any fractional Shares otherwise issuable upon such surrender.
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become a
holder of record of such Shares as of the date of the surrender of the
Placement Agent Warrants as aforesaid (and payment of the Exercise Price with
respect to Section 4(a)(i) hereof); provided, however, that if, at the date of
surrender of such Placement
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Agent Warrants, the transfer books for the Common Stock or other class of
securities issuable upon the exercise of such Placement Agent Warrants shall be
closed, the certificates for the Shares shall be issuable as of the date on
which such books shall next be opened (whether before, on or after the Warrant
Expiration Date) and until such date the Company shall be under no duty to
deliver any certificate for such Shares; provided, further, however, that the
transfer books of record, unless otherwise required by law, shall not be closed
at any one time for a period longer than twenty (20) days. The rights of
purchase represented by the Placement Agent Warrants shall be exercisable, at
the election of the Holders thereof, either in full or from time to time in
part and, in the event that any Placement Agent Warrant is exercised in respect
of less than all of the Shares issuable upon such exercise at any time prior to
the Warrant Expiration Date, a new Placement Agent Warrant or Placement Agent
Warrants will be issued for the remaining number of Shares specified in the
Placement Agent Warrant so surrendered.
5. Payment of Taxes. The Company will pay all documentary
stamp taxes, if any, attributable to the issuance of Shares upon the exercise
of the Placement Agent Warrants; provided, however, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue or delivery of any certificates for Shares in a
name other than that of the Holder of the Placement Agent Warrants in respect
of which such Shares are issued.
6. Mutilated or Missing Warrants. In case any of the
Placement Agent Warrants shall be mutilated, lost, stolen or destroyed, the
Company may, in its discretion, issue and deliver in exchange and substitution
for and upon cancellation of the mutilated Placement Agent Warrant, or in lieu
of and substitution for the Placement Agent Warrant lost, stolen or destroyed,
a new Placement Agent Warrant of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence reasonably satisfactory to
the Company of such mutilation, loss, theft or destruction of such Placement
Agent Warrant and indemnity, unless mutilated, also reasonably satisfactory to
the Company, indemnifying the Company for any claims arising under a Placement
Agent Warrant that has been lost, stolen or destroyed. An applicant for such
substitute Placement Agent Warrants shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company may
prescribe.
7. Reservation of Shares, etc. There have been reserved, and
the Company shall at all times keep reserved, out of the authorized and
unissued Common Stock, a number of shares of Common Stock sufficient to provide
for the exercise of the rights of purchase represented by the outstanding
Placement Agent Warrants. American Stock Transfer & Trust Company, transfer
agent for the Common Stock (the "Transfer Agent"), and every subsequent
transfer agent, if any, for the Company's securities issuable upon the exercise
of the Placement Agent Warrants will be irrevocably authorized and directed at
all times until the Warrant Expiration Date to reserve such number of
authorized and unissued shares as shall be required for such purpose. The
Company will keep a copy of this Agreement on file with the Transfer Agent and
with every subsequent transfer agent for any shares of the Company's securities
issuable upon the exercise of the Placement Agent Warrants. The Company will
supply the
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Transfer Agent or any subsequent transfer agent with duly executed certificates
for such purpose and will itself provide or otherwise make available any cash
which may be distributable as provided in Section 9 of this Agreement. All
Placement Agent Warrants surrendered in the exercise of the rights thereby
evidenced shall be canceled, and such canceled Placement Agent Warrants shall
constitute sufficient evidence of the number of Shares that have been issued
upon the exercise of such Placement Agent Warrants. No shares of Common Stock
shall be subject to reservation in respect of unexercised Placement Agent
Warrants subsequent to the Warrant Expiration Date.
8. Adjustments of Exercise Price and Number of Shares.
The Exercise Price and the number and kind of securities issuable upon exercise
of each Placement Agent Warrant shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
(a) In case the Company shall (i) declare a
dividend on its Common Stock in shares of Common Stock or make a distribution
in Common Stock, (ii) subdivide its outstanding Common Stock, (iii) combine its
outstanding Common Stock into a smaller number of shares of Common Stock or
(iv) issue by reclassification of its Common Stock other securities of the
Company (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing corporation), the number of
Shares purchasable upon exercise of each Placement Agent Warrant immediately
prior thereto shall be adjusted so that the Holder of each Placement Agent
Warrant shall be entitled to receive the kind and number of Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Placement Agent Warrant been exercised immediately prior to the happening of
such event or any record date with respect thereto. An adjustment made
pursuant to this paragraph (a) shall become effective immediately after the
effective date of such event.
(b) In case the Company shall issue rights,
options or warrants to all holders of its Common Stock, without any charge to
such holders, entitling them (for a period expiring within 45 days after the
record date mentioned below in this paragraph (b)) to subscribe for or to
purchase shares of Common Stock at a price per share that is lower at the
record date mentioned below than the Current Market Price per share of Common
Stock, the number of Shares thereafter purchasable upon exercise of each
Placement Agent Warrant shall be determined by multiplying the number of Shares
theretofore purchasable upon exercise of each Placement Agent Warrant by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered would purchase at the Current Market Price
per share of Common Stock. Such adjustment shall be made whenever such rights,
options or warrants are issued, and shall become effective on the date of
issuance.
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(c) In case the Company shall distribute to all
holders of its shares of Common Stock shares of stock (other than Common
Stock) or evidences of its indebtedness or assets (excluding cash dividends
payable out of consolidated earnings or retained earnings and dividends or
distributions referred to in paragraph (a) above) or rights, options or
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding those referred to
in paragraph (b) above), then in each case the number of Shares thereafter
issuable upon the exercise of each Placement Agent Warrant shall be determined
by multiplying the number of Shares theretofore issuable upon the exercise of
each Placement Agent Warrant, by a fraction, of which the numerator shall be
the Current Market Price per share of Common Stock on the record date mentioned
below in this paragraph (c), and of which the denominator shall be the Current
Market Price per share of Common Stock on such record date, less the then fair
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the shares of stock (other
than Common Stock) or assets or evidences of indebtedness so distributed or of
such subscription rights, options or warrants, or of such convertible or
exchangeable securities, applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution.
(d) For the purpose of any computation under this
Agreement, the Current Market Price per share of Common Stock at any date shall
be the average of the daily closing prices for fifteen (15) consecutive trading
days commencing twenty (20) trading days before the date of such computation.
The closing price for each day shall be the last reported sale price regular
way or, in case no such reported sale takes place on such day, the average of
the closing bid and asked prices regular way for such day, in either case on
the principal national securities exchange on which the shares are listed or
admitted to trading, or if they are not listed or admitted to trading on any
national securities exchange, but are traded in the over-the-counter market,
the closing sale price of the Common Stock or, in case no sale is publicly
reported, the average of the representative closing bid and asked quotations
for the Common Stock on the Nasdaq Stock Market ("NASDAQ") system or any
comparable system, or if the Common Stock is not listed on the NASDAQ system or
a comparable system, the closing sale price of the Common Stock or, in case no
sale is publicly reported, the average of the closing bid and asked prices as
furnished by two members of the NASD selected from time to time by the Company
for that purpose.
(e) No adjustment in the number of Shares
purchasable hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of Shares
purchasable upon the exercise of each Placement Agent Warrant; provided,
however, that any adjustments which by reason of this paragraph (e) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment, but not later than three years after the happening of
the specified event or events. All calculations shall be made to the nearest
one thousandth of a share. Anything in this Section 8 to the contrary
notwithstanding, the Company shall be entitled, but shall not be required, to
make
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such changes in the number of Shares purchasable upon the exercise of each
Placement Agent Warrant, in addition to those required by this Section 8, as it
in its discretion shall determine to be advisable in order that any dividend or
distribution in shares of Common Stock, subdivision, reclassification or
combination of shares of Common Stock, issuance of rights, warrants or options
to purchase Common Stock, or distribution of shares of stock other than Common
Stock, evidences of indebtedness or assets (other than distributions of cash
out of consolidated earnings or retained earnings) or convertible or
exchangeable securities hereafter made by the Company to the holders of its
Common Stock shall not result in any tax to the holders of its Common Stock or
securities convertible into Common Stock.
(f) Whenever the number of Shares purchasable upon
the exercise of each Placement Agent Warrant is adjusted, as herein provided,
the Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Shares purchasable upon the exercise of each
Placement Agent Warrant immediately prior to such adjustment, and of which the
denominator shall be the number of Shares so purchasable immediately
thereafter.
(g) For the purpose of this Section 8, the term
"shares of Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement or (ii) any other
class of stock resulting from successive changes or reclassifications of such
shares consisting solely of changes in par value, or from no par value to par
value, or from par value to no par value. In the event that at any time, as a
result of an adjustment made pursuant to paragraph (a) above, the Holders shall
become entitled to purchase any shares of capital stock of the Company other
than Common Stock, thereafter the number of such other shares so purchasable
upon exercise of each Placement Agent Warrant and the Exercise Price of such
Shares 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
Shares contained in paragraphs (a) through (f), inclusive, and paragraphs (h)
through (m), inclusive, of this Section 8, and the provisions of Sections 4, 5,
7 and 10, with respect to the Shares, shall apply on like terms to any such
other shares.
(h) Upon the expiration of any rights, options,
warrants or conversion rights or exchange privileges, if any thereof shall not
have been exercised, the Exercise Price and the number of shares of Common
Stock purchasable upon the exercise of each Placement Agent Warrant shall, upon
such expiration, be readjusted and shall thereafter be such as it would have
been had it originally been adjusted (or had the original adjustment not been
required, as the case may be) as if (i) the only shares of Common Stock so
issued were the Common Stock, if any, actually issued or sold upon the exercise
of such rights, options, warrants or conversion rights or exchange privileges
and (ii) such Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale
or grant of all of such rights, options, warrants or conversion rights or
exchange privileges whether or not exercised; provided, however, that no such
readjustment shall have the effect of
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increasing the Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect to the issuance, sale or grant of such
rights, options, warrants or conversion rights or exchange privileges.
(i) The Company may, at its option, at any time
during the term of the Placement Agent Warrants, reduce the then current
Exercise Price to any amount deemed appropriate by the Board of Directors of
the Company, for any length of time.
(j) Whenever the number of Shares issuable upon
the exercise of each Placement Agent Warrant or the Exercise Price of such
Shares is adjusted, as herein provided, the Company shall promptly mail by
first class mail postage prepaid, to each Holder notice of such adjustment or
adjustments at such Holder's address appearing on the Placement Agent Warrant
Register. The Chief Financial Officer of the Company shall make any
computation required by this Section 8 and shall execute a certificate (the
"CFO Certificate") setting forth the number of Shares issuable upon the
exercise of each Placement Agent 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. Each Holder shall have the right to inspect the CFO Certificate during
reasonable business hours. In the event that a Holder shall dispute the
determination set forth in the CFO Certificate, the Company shall retain, at
its expense, a firm of independent public accountants (who may be regular
accountants employed by the Company) to make the required computation and to
prepare a certificate which shall set forth the information required in the CFO
Certificate. Such certificate shall be conclusive on the correctness of such
adjustment and each Holder shall have the right to inspect such certificate
during reasonable business hours.
(k) Except as provided in this Section 8, no
adjustment in respect of any dividends shall be made during the term of a
Placement Agent Warrant or upon the exercise of a Placement Agent Warrant.
(l) In case of any consolidation of the Company
with or merger of, the Company with or into another corporation or in case of
any sale or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, the Company or such successor or
purchasing corporation (or an affiliate of such successor or purchasing
corporation), as the case may be, agrees that each Holder shall have the right
thereafter upon payment of the Exercise Price in effect immediately prior to
such action to purchase upon exercise of each Placement Agent Warrant the kind
and amount of shares and other securities and property (including cash) which
he would have owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had such Placement Agent Warrant
been exercised immediately prior to such action. The provisions of this
paragraph (l) shall similarly apply to successive consolidations, mergers,
sales or conveyances.
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(m) Notwithstanding any adjustment in the
Exercise Price or the number or kind of shares purchasable upon the exercise of
the Placement Agent Warrants pursuant to this Agreement, certificates for the
Placement Agent Warrants issued prior or subsequent to such adjustment may
continue to express the same price and number and kind of Shares as are
initially issuable pursuant to this Agreement.
9. Fractional Interests. The Company shall not be
required to issue fractions of Shares on the exercise of the Placement Agent
Warrants. If more than one Placement Agent Warrant shall be presented for
exercise in full at the same time by the same Holder, the number of Shares
which shall be issuable upon the exercise thereof shall be computed on the
basis of the aggregate number of Shares issuable on exercise of the Placement
Agent Warrants so presented. If any fraction of a Share would, except for the
provisions of this Section 9, be issuable on the exercise of any Placement
Agent Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the Current Market
Price per share of Common Stock on the date of exercise.
10. Registration Rights.
(a) Piggyback Registration Rights. The Company
covenants and agrees with the Placement Agent and any other Holders or
subsequent Holders of the Registrable Securities that if, at any time within
the period commencing two years and ending five years after the Effective Date,
it proposes to file a Registration Statement with respect to any class of
security under the Act in a primary registration on behalf of the Company
and/or in a secondary registration on behalf of holders of such securities and
the registration form to be used may be used for registration of the
Registrable Securities, the Company will give prompt written notice (which, in
the case of a Registration Statement or notification pursuant to the exercise
of demand registration rights other than those provided in Section 10(a) of
this Agreement, shall be within ten (10) business days after the Company's
receipt of notice of such exercise) to, the Holders of Registrable Securities
(regardless of whether some of the Holders shall have theretofore availed
themselves of the right provided in Section 10(a) of this Agreement) at the
addresses appearing on the records of the Company of its intention to file a
Registration Statement and will offer to include in such registration statement
to the maximum extent possible such number of Registrable Securities with
respect to which the Company has received written requests for inclusion
therein within ten (10) days after the giving of notice by the Company. All
registrations requested pursuant to this Section 10(b) are referred to herein
as "Piggyback Registrations." This paragraph is not applicable to a
Registration Statement filed by the Company with the Commission on Forms S-4 or
S-8 or any successor forms.
(i) Priority on Primary Registrations. If a
Piggyback Registration includes an underwritten primary registration
on behalf of the Company and the underwriter(s) for the offering being
registered by the Company shall determine in good
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faith and advise the Company in writing that in its/their opinion the
number of Registrable Securities requested to be included in such
registration exceeds the number that can be sold in such offering
without materially adversely affecting the distribution of such
securities by the Company, the Company will include in such
registration (A) first, the securities that the Company proposes to
sell and (B) second, other securities requesting registration
(including the Registrable Securities), apportioned pro rata among the
Holders of Registrable Securities and the holders of other securities
requesting registration.
(ii) Priority on Secondary Registrations. If a
Piggyback Registration consists only of an underwritten secondary
registration on behalf of a holder of securities of the Company (other
than pursuant to Section 10(a)), and the underwriter(s) for the
offering being registered by the Company advise the Company in writing
that in its/their opinion the number of Registrable Securities
requested to be included in such registration exceeds the number which
can be sold in such offering without materially adversely affecting
the distribution of such securities by the Company, the Company will
include in such registration (A) first, the securities requested to be
included therein by the holders requesting such registration and the
Registrable Securities requested to be included in such registration
above, pro rata, among all such holders on the basis of the number of
shares requested to be included by each such holder and (B) second,
other securities requested to be included in such registration.
Notwithstanding the foregoing, if any such
underwriter(s) shall determine in good faith and advise the Company in
writing that the distribution of the Registrable Securities requested
to be included in the registration concurrently with the securities
being registered by the Company would materially adversely affect the
distribution of such securities by the Company, then the Holders of
such Registrable Securities shall not participate in the Company's
distribution by the underwriter(s) and shall delay their offering and
sale for such period ending on the earliest of (1) 90 days following
the effective date of the Company's registration statement, (2) the
day upon which the underwriting syndicate, if any, for such offering
shall have been disbanded or (3) such date as the Company, managing
underwriter and Holders of Registrable Securities shall not
participate in the Company's distribution by the underwriter(s) and
shall otherwise agree. In the event of such delay, the Company shall
file such supplements, post-effective amendments and take any such
other steps as may be necessary to permit such Holders to make their
proposed offering and sale for a period of 120 days immediately
following the end of such period of delay. If any party disapproves
of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to the Company, the underwriter, and the
Placement Agent. Notwithstanding the foregoing, the Company shall not
be required to file a registration statement to include Shares
pursuant to this Section 10(b) if an opinion of counsel, reasonably
satisfactory to counsel for the Placement Agent, that the Shares
proposed to be disposed of may be transferred pursuant to the
provisions of Rule 144 under the Act shall have been delivered to the
Company and the Placement Agent.
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(b) Action to be Taken by the Company. In
connection with the registration of Registrable Securities in accordance with
paragraphs (a) or (b) of this Section 10, the Company agrees to:
(i) Bear the expenses of any registration or
qualification under paragraphs (a) or (b) of this Section 10,
including, but not limited to, legal, accounting and printing fees;
provided, however, that in no event shall the Company be obligated to
pay (A) any fees and disbursements of special counsel for Holders of
Registrable Securities, or (B) any underwriters' discount or
commission in respect of such Registrable Securities, or (C) upon the
exercise of the demand registration right provided for in paragraph
(a) of this Section 10, the cost of any liability or similar insurance
required by an underwriter, to the extent that such costs are
attributable solely to the offering of such Registrable Securities,
payment of which shall, in each case, be the sole responsibility of
the Holders of the Registrable Securities; and
(ii) Use its best efforts to register or qualify the
Registrable Securities for offer or sale under state securities or
Blue Sky laws of jurisdictions in which the Placement Agent shall
reasonably request and to do any and all other acts and things which
may be necessary or advisable to enable the holders to consummate the
proposed sale, transfer or other disposition of such securities in any
jurisdiction; and
(iii) Enter into a cross-indemnity agreement, in
customary form, with each underwriter, if any, and each holder of
securities included in such Amendment or Registration Statement.
(c) For purposes of this Section 10, (i) the term
"Holder" shall include holders of Shares, (ii) the term "Registrable
Securities" shall mean the Shares issuable or issued upon exercise of the
Placement Agent Warrants, and (iii) the term "Financing Effort" shall mean a
financing undertaken by the Company pursuant to a filed registration statement
or pursuant to an executed letter of intent or similar agreement whereupon the
Company reasonably contemplates the commencement of marketing within fourteen
days from the date thereof. Nothing in this Section 10, however, shall be
deemed to require the Company to register the Placement Agent Warrants, it
being understood that the registration rights granted hereby relate only to the
Shares issuable or issued upon exercise of the Placement Agent Warrants and any
securities issued in substitution or exchange therefor.
11. Notices to Holders.
(a) Nothing contained in this Agreement or in any
of the Placement Agent Warrants shall be construed as conferring upon the
Holders thereof the right to vote or to receive dividends or to consent or to
receive notice as shareholders in respect of the meetings of
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shareholders or the election of directors of the Company or any other matter,
or any rights whatsoever as shareholders of the Company; provided, however,
that in the event that a meeting of shareholders shall be called to consider
and take action on a proposal for the voluntary dissolution of the Company,
other than in connection with a consolidation, merger or sale of all, or
substantially all, of its property, assets, business and good will as an
entirety, then and in that event the Company shall cause a notice thereof to be
sent by first-class mail, postage prepaid, at least twenty (20) days prior to
the date filed as a record date or the date of closing the transfer books in
relation to such meeting, to each registered Holder of the Placement Agent
Warrants at such Holder's address appearing on the Placement Agent Warrant
Register; but failure to mail or to receive such notice or any defect therein
or in the mailing thereof shall not affect the validity of any action taken in
connection with such voluntary dissolution. If such notice shall have been so
given and if such a voluntary dissolution shall be authorized at such meeting
or any adjournment thereof, then from and after the date on which such
voluntary dissolution shall have been duly authorized by the shareholders, the
purchase rights represented by the Placement Agent Warrants and all other
rights with respect thereto shall cease and terminate.
(b) In the event the Company intends to make any
distribution on its Common Stock (or other securities which may be issuable in
lieu thereof upon the exercise of the Placement Agent Warrants), including,
without limitation, any such distribution to be made in connection with a
consolidation or merger in which the Company is the continuing corporation, or
to issue subscription rights or warrants to holders of its Common Stock, the
Company shall cause a notice of its intention to make such distribution to be
sent by first-class mail, postage prepaid, at least twenty (20) days prior to
the date fixed as a record date or the date of closing the transfer books in
relation to such distribution, to each registered Holder of the Placement Agent
Warrants at such Holder's address appearing on the Placement Agent Warrant
Register, but failure to mail or to receive such notice or any defect therein
or in the mailing thereof shall not affect the validity of any action taken in
connection with such distribution.
12. Notices. Any notice pursuant to this Agreement to be
given or made by the Holder of any Placement Agent Warrant and/or the holder of
any Share to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed as follows or to such other
address as the Company may designate by notice given in accordance with this
Section 12, to the Holders of Placement Agent Warrants and/or the holders of
Shares:
Nashville Country Club, Inc.
000 Xxxxxxxx Xxxxxxxxxx Xxx
Xxxxxxx Xxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx Xxxxxx, III
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with a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Notices or demands authorized by this Agreement to be
given or made by the Company to or on the Holder of any Placement Agent Warrant
and/or the holder of any Share shall be sufficiently given or made (except as
otherwise provided in this Agreement) if sent by first-class mail, postage
prepaid, addressed to such Holder or such holder of Shares at the address of
such Holder or such holder of Shares as shown on the Placement Agent Warrant
Register or the books of the Company, as the case may be.
13. Governing Law. This Agreement and each Placement
Agent Warrant issued hereunder shall be governed by and construed in accordance
with the substantive laws of the State of New York. The Company hereby agrees
to accept service of process by notice given to it pursuant to the provisions
of Section 12.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts together shall 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 day, month and year first above
written.
NASHVILLE COUNTRY CLUB, INC.
By:
-------------------------------
Attest:
-----------------------------
Name:
Title:
XXXXXXXX XXXXXX REFSNES, INC.
By:
-------------------------------
Attest:
-----------------------------
Name:
Title:
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EXHIBIT A
No. ________ ________ Warrants
VOID AFTER 5:00 P.M. EASTERN STANDARD TIME
ON JUNE __, 2002
NASHVILLE COUNTRY CLUB, INC.
Warrant Certificate
THIS CERTIFIES THAT for value received Xxxxxxxx Xxxxxx
Refsnes, Inc. or registered assigns, is the owner of the number of warrants set
forth above, each of which entitles the owner thereof to purchase at any time
from June __, 1997, until 5:00 p.m., Eastern Standard Time on June __, 2002
(the "Warrant Expiration Date"), one fully paid and nonassessable share of
Common Stock, no par value per share (the "Common Stock"), of Nashville Country
Club, Inc., a Tennessee corporation (the "Company"), at the purchase price of
$____ per share (the "Exercise Price") upon presentation and surrender of this
Warrant Certificate with either the Form of Election to Purchase or Form of
Cashless Exercise duly executed. The number of Warrants evidenced by this
Warrant Certificate (and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Exercise Price per share set forth
above, are the number and Exercise Price as of the date of original issuance of
the Warrants, based on the shares of Common Stock of the Company as constituted
at such date. As provided in the Warrant Agreement referred to below, the
Exercise Price and the number or kind of shares which may be purchased upon the
exercise of the Warrants evidenced by this Warrant Certificate are, upon the
happening of certain events, subject to modification and adjustment.
This Warrant Certificate is subject to, and entitled to the
benefits of, all of the terms, provisions and conditions of an agreement dated
as of June __, 1997 (the "Warrant Agreement") between the Company and Xxxxxxxx
Xxxxxx Refsnes, Inc. which Warrant Agreement is hereby incorporated herein by
reference and made a part hereof and to which Warrant Agreement reference is
hereby made for a full description of the rights, limitations of rights, duties
and immunities hereunder of the Company and the holders of the Warrant
Certificates. Copies of the Warrant Agreement are on file at the principal
office of the Company.
This Warrant Certificate, with or without other Warrant
Certificates, upon surrender at the principal office of the Company, may be
exchanged for another Warrant Certificate or Warrant Certificates of like tenor
and date evidencing Warrants entitling the holder to purchase a like aggregate
number of shares of Common Stock as the Warrants evidenced by the Warrant
Certificate or Warrant Certificates surrendered entitled such holder to
purchase. If this Warrant Certificate shall be exercised in part, the holder
hereof shall be entitled to receive upon surrender hereof another Warrant
Certificate or Warrant Certificates for the number of whole Warrants not
exercised.
X-0
00
Xx fractional shares of Common Stock will be issued upon the
exercise of any Warrant or Warrants evidenced hereby, but in lieu thereof a
cash payment will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to
vote or receive dividends or be deemed the holder of Common Stock, any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained in the Warrant Agreement
or herein be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issue of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance, or
otherwise) or, except as provided in the Warrant Agreement, to receive notice
of meetings, or to receive dividends or subscription rights or otherwise, until
the Warrant or Warrants evidenced by this Warrant Certificate shall have been
exercised and the shares shall have become deliverable as provided in the
Warrant Agreement.
If this Warrant shall be surrendered for exercise within any
period during which the transfer books for the Company's Common Stock or other
class of stock purchasable upon the exercise of this Warrant are closed for any
purpose, the Company shall not be required to make delivery of certificates for
shares purchasable upon such exercise until the date of the reopening of said
transfer books.
A-2
18
IN WITNESS WHEREOF, NASHVILLE COUNTRY CLUB, INC. has caused
the signature (or facsimile signature) of its Chairman of the Board and Chief
Executive Officer and its Secretary to be printed hereon.
Dated: ____________ ___, 1997
NASHVILLE COUNTRY CLUB, INC.
By:
-------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
A-3
19
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate in
accordance with Section 4(a)(i) of the Warrant Agreement.)
TO: NASHVILLE COUNTRY CLUB, INC.
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and payment of the Exercise Price
therefor in accordance with Section 4(a)(i) of the Warrant Agreement and
requests that certificates for such shares to be issued in the name of:
Please insert social security or other
identifying number
--------------------------------
--------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------
If such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of
such Warrants shall be registered in the name of and delivered to:
Please insert social security number or other
identifying number
--------------------------------
--------------------------------
-----------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------
DATED: ______________, ____
--------------------------------------
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate)
Signature Guaranteed:
20
FORM OF CASHLESS EXERCISE
(To be executed if holder desires to exercise
the Warrant Certificate in accordance
with Section 4(a)(ii) of the Warrant Agreement)
TO: NASHVILLE COUNTRY CLUB, INC.
The undersigned hereby irrevocably elects a Cashless Exercise of the
Warrants represented by this Warrant Certificate to purchase the shares of
Common Stock issuable upon the exercise of such Warrants in accordance with
Section 4(a)(ii) of the Warrant Agreement and requests that certificates for
such shares be issued in the name of:
Please insert Social Security or
other identifying number
(Please print name and address)
If such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of
such Warrants shall be registered in the name of and delivered to:
Please insert Social Security or
other identifying number
(Please print name and address)
Dated: __________, ____
--------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the back of this
Warrant Certificate)
Signature Guaranteed:
21
FORM OF
ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificates.)
FOR VALUE RECEIVED, ________________________ hereby sells,
assigns and transfers unto this Warrant Certificate, together with all right,
title and interest herein, and does hereby irrevocably constitute and appoint
________________, to transfer the within Warrant Certificate on the books of
the within-named Company, with full power of substitution.
Dated: _______________,__
Signature
-----------------------
Signature Guaranteed:
NOTICE
The signature of the foregoing Assignment must correspond to
the name as written upon the face of this Warrant Certificate in every
particular, without alteration or enlargement or any change whatsoever.
