RENAISSANCE GOLF PRODUCTS, INC.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of October 29, 1997, is entered into by and
among RENAISSANCE GOLF PRODUCTS, INC., a Delaware corporation, (the "Company"),
and AKA Charitable Remainder Unitrust #1 (the "Purchaser").
The Company proposes to issue to the Purchaser warrants as hereinafter
described (the "Warrants") to purchase up to an aggregate of four hundred
thousand (400,000) shares, subject to adjustment as provided in Section 8 hereof
(such 400,000 shares, as adjusted, being hereinafter referred to as the "Warrant
Shares") of the Company's Common Stock (the "Common Stock"), each Warrant
entitling the holder ("Holder") thereof to purchase one share of Common Stock.
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. On the date hereof (the "Closing
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Date"), the Company hereby issues, sells and delivers the Warrants to the
Purchaser, in consideration for the Purchaser's agreement to loan the Company
Five Million Dollars ($5,000,000) in accordance with the terms of that certain
Loan and Security Agreement dated October 29, 1997 (the "Loan"), to purchase two
hundred thousand (200,000) shares of the Common Stock of RGPI at an exercise
price of One Dollar and Fifty Cents ($1.50) per share, one hundred thousand
(100,000) shares of the Common Stock of RGPI at an exercise price of Two Dollars
($2.00) per share, and one hundred thousand (100,000) shares of the Common Stock
of RGPI at an exercise price of Three Dollars ($3.00) per share. The form of
the Warrants and the form of election to purchase Shares to be attached thereto
shall be substantially as set forth on Exhibits "X," "X," and "C," each of which
is entitled "Warrant Certificate." The Warrants shall be executed on behalf of
the Company by the manual or facsimile signature of the then present Chairman or
Co-Chairman, Chief Executive Officer, President or any Vice President of the
Company, under its corporate seal, affixed or in facsimile, and attested by the
manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company.
2. REGISTRATION. The Warrants shall be numbered and shall be registered in a
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Warrant register (the "Warrant Register"). Subject to the provisions of Section
3, the Company shall be entitled to treat the registered holder of any Warrant
on the Warrant Register 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
Warrant on the part of any other person, and shall not be liable for any
registration of transfer of 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 Warrants
shall be registered initially in the name of the Purchaser.
3. WARRANTS TRANSFERABILITY LIMITED. The Warrants are expressly hereby made
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non-transferable and shall not be sold, transferred, assigned or hypothecated,
in part or in whole, except upon the liquidation and dissolution of the
Purchaser or the prior written consent of the Company. Any permitted transfer
will be allowed only upon delivery of the Warrant Certificate 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 and
contingent upon approval by the Board of Directors of the Company. Such
permitted transfer, of the Warrants shall be effective as of the date of such
endorsement or other proper evidence. 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. Such permitted transfer of the
Warrants shall be effective as of the date of such endorsement or other proper
evidence. In all cases of transfer by an attorney, the original power of
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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 Warrant or Warrants to the person entitled thereto. The Warrants
may be exchanged at the option of the Holder thereof for other 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. The Company may require payment of the
sum sufficient to cover all applicable taxes and other governmental charges that
may be imposed in connection with any voluntary transfer, exchange or other
disposition of the Warrants. Notwithstanding the foregoing, the Company shall
have no obligation to cause Warrants to be transferred on its books to any
person, if such transfer would violate the registration provisions of Securities
Act of 1933, as amended (the "Act"), unless an exemption under the Act is
available therefor.
4. TERM OF WARRANTS; EXERCISE OF WARRANTS.
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(a) Subject to Paragraph 4(d) below, the Warrants entitle the registered
owner thereof to purchase two hundred thousand (200,000) shares of the Common
Stock of RGPI at an exercise price of One Dollar and Fifty Cents ($1.50) per
share, one hundred thousand (100,000) shares of the Common Stock of RGPI at an
exercise price of Two Dollars ($2.00) per share, and one hundred thousand
(100,000) shares of the Common Stock of RGPI at an exercise price of Three
Dollars ($3.00) per share, (as adjusted from time to time pursuant to the
provisions hereof, the "Exercise Price") at any time or from time to time from
and after the Closing Date until 5:00 p.m., California time, on December 31,
2002 (the "Warrant Expiration Date"). The Exercise Price and the Shares
issuable upon exercise of Warrants are calculated after the Company's four-to-
one (4:1) reverse stock split approved by the stockholders of the Company on the
Closing Date, but 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 the Agreement, the Purchaser or a permitted Holder shall have
the right, which may be exercised as set forth in such Warrants, to purchase
from the Company and the Company shall issue and sell to the Purchaser or such
Holder the number of fully paid and nonassessable Shares of Common Stock
specified in such Warrants, upon surrender to the Company, or its duly
authorized agent, of such Warrants, with the form of election to purchase
attached thereto duly completed and signed, 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 Warrants
are then exercised.
(b) The Exercise Price may be paid (i) in cash or by cashier's check
payable to the Company, or (ii) by conversion of a portion of the principal of
or interest on the Loan into shares of Common Stock at the Exercise Price.
(c) No adjustment shall be made for any dividends on any Shares issuable
upon exercise of a Warrant. Upon each surrender of Warrants and payment of the
Exercise Price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch to or upon the written order of the Purchaser or
the permitted Holder of such Warrants and in such name or names as the Purchaser
or such Holder may designate, a certificate or certificates for the number of
full Shares so purchased upon the exercise of such 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 Warrants and payment of the Exercise Price as aforesaid;
provided, however, that if, at the date of surrender of such Warrants and
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payment of such Exercise Price, the transfer books for the Common Stock or other
class of securities issuable upon the exercise of such 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
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of
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record, unless otherwise required by law, shall not be closed at any one time
for a period longer than five (5) days. The rights of purchase represented by
the Warrants shall be exercisable, at the election of the Holder(s) thereof,
either in full or from time to time in part and, in the event that any 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 Warrant or
Warrants will be issued for the remaining number of Shares specified in the
Warrant so surrendered.
5. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes, if
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any, attributable to the issuance of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable solely in respect of any transfer involved in the
issue or delivery of any certificates for Shares in a name other than that of
the Purchaser or a permitted Holder of Warrants in respect of which such Shares
are issued.
6. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
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mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right of interest, but only
upon receipt of evidence reasonably satisfactory to the Company of such
mutilation, loss, theft or destruction of such Warrant and indemnity, if
requested, reasonably satisfactory to the Company. An applicant for such
substitute Warrants shall also comply with such other reasonable regulations and
pay such other reasonable charges and expenses as the Company may prescribe.
7. RESERVATION OF SHARES, ETC. There have been reserved, and the Company
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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 Warrants. American
Securities Transfer, Incorporated, 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 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 Warrants.
The Company will supply the 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 Warrants surrendered in the exercise of the rights thereby
evidenced shall be canceled, and such canceled Warrants shall constitute
sufficient evidence of the number of Shares that have been issued upon the
exercise of such Warrants. No shares of Common Stock shall be subject to
reservation in respect of unexercised Warrants subsequent to the Warrant
Expiration Date.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise Price and
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the number and kind of securities issuable upon exercise of each 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 shares of Common Stock (other
than an issuance of Common Stock for valuable consideration), (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock in to a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification in connection with the consolidation or
merger in which the Company is the continuing corporation), the number of Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the Purchaser and any permitted Holder of each 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 Warrant been exercised
immediately prior to the happening of such event or any record date
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with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event retroactive
to immediately after the record date, if any, for such event.
(b) 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 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 five (5) years
after the happening of the specified event or events. All calculations shall be
made to the nearest one thousandth of a share.
(c) Whenever the number of Shares purchasable upon the exercise of each
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 Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of Shares so purchasable immediately
thereafter.
(d) 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.
(e) Whenever the number of Shares issuable upon the exercise of each
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 the
Purchaser and/or each permitted Holder notice of such adjustment or adjustments.
The Company shall retain a firm of independent public accountants (who may be
the regular accountants employed by the Company) to make any computation
required by this Section 8 and shall cause such accountants to prepare a
certificate setting forth the number of Shares issuable upon the exercise of
each 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. Such
certificate shall be conclusive as to the correctness of such adjustment and the
Purchaser and/or each permitted Holder shall have the right to inspect such
certificate during reasonable business hours.
(f) Except as provided in this Section 8, no adjustment in respect of any
dividends shall be made during the term of a Warrant or upon the exercise of a
Warrant.
(g) If any capital reorganization, recapitalization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of the Company's
assets to another person or entity, or any other transaction (collectively, an
"Organic Change") shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive stock, securities or assets with
respect to or in exchange for shares of Common Stock (such stock, securities or
assets being hereinafter referred to as "substitute property"), then, as a
condition of such Organic Change, lawful and adequate provision shall be made
whereby the Purchaser and the permitted Holder shall thereafter have the right
to purchase and receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of the Warrants, such
substituted property as may be issued or payable with respect to or in exchange
for a number of outstanding shares of Common Stock equal to the number of shares
of Common Stock immediately theretofore purchasable and receivable upon the
exercise of the Warrants had such Organic Change not taken place. Further, in
any such case appropriate provision shall be made with respect to the rights and
interests of the Purchaser and the permitted Holder to the end that the
provision hereof (including without limitation provisions for adjustments of the
Exercise Price and of the number of shares purchasable and receivable upon the
exercise of the Warrants) shall thereafter be applicable, as
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nearly as may be, in relation to any substituted property thereafter purchasable
and receivable upon the exercise of the Warrants. The Company shall not effect
any such Organic Change, unless prior to the consummation thereof the successor
entity (if other than the Company) resulting from such consolidation or merger
or the corporation purchasing the assets shall assume by written instrument
approved by the board of directors of the Company the obligation to deliver to
the Holders such substituted property as, in accordance with the foregoing
provisions, the Holders may be entitled to purchase and receive.
(h) Notwithstanding any adjustment in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants pursuant to this
Agreement, certificates for 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
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of Shares on the exercise of Warrants. If more than one Warrant shall be
presented for exercise in full at the same time by the Purchaser or the same
permitted 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 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 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 (determined as provided in Section 8(d) of this
Agreement) on the date of exercise.
10. REGISTRATION RIGHTS.
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(a) PIGGYBACK REGISTRATION RIGHTS. The Company covenants and agrees with
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the Purchaser and any subsequent Holders of the Registrable Securities (as
defined in paragraph (d) of this Section 10) that if, at any time after the
Warrants become exercisable, it proposes to file a Registration Statement with
respect to any class of equity or equity-related 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 to the Holders of Registrable Securities 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, subject to paragraphs (i) and (ii) of this paragraph
(a), such number of Registrable Securities with respect to which the Company has
received written requests for inclusion therein within ten (10) business days
after the Holder(s) receive notice from the Company. All registrations
requested pursuant to this paragraph (a) 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 thereto.
(i) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
---------------------------------
includes an underwritten primary registration on behalf of such Company and the
underwriter(s) for such offering determines in good faith and advises 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 proposed to sell and (B)
second, the Registrable Securities requested to be included in such
registration, apportioned pro rata among the Holders of Registrable Securities
and (C) third, securities of 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 holders of
securities of the Company, and the underwriter(s) for such offering advises 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
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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, 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.
(b) OTHER REGISTRATION RIGHTS. In addition to the rights above-provided,
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the Company agrees to file and use its best efforts to diligently pursue a
separate registration statement or statements on Form S-3 within 30 days of the
exercise of all of the Warrants represented by Exhibits "X," "X," or "C,"
respectively, in order to permit the Holders to sell or transfer the Registrable
Securities covered by each such registration statement at the Company's cost and
expense.
(c) All registration expenses (as hereinafter defined) in connection with
a Piggyback Registration or a registration statement on Form S-3 shall be borne
by the Company and all selling expenses (as hereinafter defined) in connection
with a Piggyback Registration or a registration statement on Form S-3 shall be
borne by the Holders. The term "registration expenses" shall mean all expenses,
except selling expenses, incurred by the Company in complying with the
registration rights granted in this Section 10, including all registration,
qualification, and filing expenses; printing expenses; escrow fees; fees and
disbursements of counsel for the Company, blue sky fees and expenses; and fees
and disbursements of the Company's independent auditors. The term "selling
expenses" shall mean all underwriting discounts and selling commissions, if any,
applicable to the Registrable Securities and expenses of counsel for the
Holders. All selling expenses shall be borne by the Holders in an amount equal
to their pro rata share of the Registrable Securities included in the
Registration Statement.
(f) For purposes of this Section 10, (i) the term "Holder" shall be
holders of Shares, and (ii) the term "Registrable Securities" shall mean the
Shares, if issued.
11. VOTING RIGHTS. Nothing contained in this Agreement or in any of the
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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 shareholders or the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company.
12. NOTICES.
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(a) Any notice pursuant to this Agreement to be given or made by the
Holder of any 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 Purchaser and any
permitted Holders of Warrants and/or the holders of Shares:
AKA Charitable Remainder Unitrust #1
Attention: Xxxxx X. Xxxxxxxxx, Esq.
000 Xxxx 0000 Xxxxx
Xxxx, Xxxx 00000
Renaissance Golf Products, Inc.
Attention Xxxx X. Xxxxxxx
0000 Xxxx Xxxxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
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Notices or demands authorized by this Agreement to be given or made by the
Company to or on the Purchaser and any permitted Holder of any 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 the Purchaser or such Holder or such holder of Shares at the
address of the Purchaser or such Holder or such holder of Shares as shown on the
Warrant Register or the books of the Company, as the case may be.
(b) If at any time prior to the expiration of the Warrants and their
exercise, any of the following events shall occur:
(i) 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
(ii) 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 therefore; or
(iii) 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; or
(iv) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company with
another entity;
then, in any one or more of said events, the Company shall give written notice
of such event at least twenty (20) 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, options or warrants, 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 or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such divided or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, options or warrants, or any
proposed dissolution, liquidation, winding-up or sale.
13. GOVERNING LAW. This Agreement and each Warrant issued hereunder shall be
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governed by and construed in accordance with the substantive laws of the State
of Delaware. 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
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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.
(End of Page)
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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.
RENAISSANCE GOLF PRODUCTS, INC.
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxxx
_______________________________
Xxxx X. Xxxxxxx,
Chairman of the Board
ATTEST:
/s/ Xxxxx X. Xxxxxxx
_______________________________
Xxxxx X. Xxxxxxx, Secretary
AKA CHARITABLE REMAINDER
UNITRUST #1
By: /s/ Xxxxx X. Xxxxxxxxx
_______________________________
Xxxxx X. Xxxxxxxxx,
Trustee
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