Exhibit 10.3C
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SECURITIES EVIDENCED BY THIS CERTIFICATE, FILED AND MADE EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND SUCH APPLICABLE STATE SECURITIES LAWS,
OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT AND SUCH APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
Dated: August 8, 2000
WARRANT
LCS GOLF, INC.
Expiring August 8, 2005
THIS IS TO CERTIFY THAT, for value received, American Warrant
Partners, LLC (the "Holder") is entitled, subject to certain conditions set
forth in Sections 1.1 and 1.2 hereof, to purchase from LCS GOLF, INC., a
Delaware corporation (the "Company"), at the Company's principal executive
office, at the Exercise Price, up to 600,000 shares (the"Warrant Shares") of
Common Stock, $.001 par value per share ("Common Stock"), all subject to
adjustment and upon the terms and conditions as hereinafter provided, and is
entitled also to exercise the other appurtenant rights, powers and privileges
hereinafter described.
Certain terms used in this Warrant are defined in Article IV hereof.
ARTICLE 1
METHOD OF EXERCISE
1.1. Time of Exercise. Subject to the provisions of Sections 1.2 and
1.3 hereof, this Warrant may be exercised in whole or in part at any time and
from time to time after 5:00 p.m. Eastern Time on the date first written above
and prior to the Expiration Time.
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1.2. Method of Exercise. To exercise this Warrant in whole or in
part, the Holder shall deliver to the Company, at the Company's principal
executive office (a) this Warrant, (b) a written notice of such Holder's
election to exercise this Warrant in the form attached hereto and (c) payment of
the Exercise Price with respect to such shares. Such payment may be made, at the
option of the Holder, in cash, by certified or bank cashier's check, money order
or wire transfer, in the manner specified in the next succeeding paragraph, or
in any other manner consented to in writing by the Company, or any combination
thereof.
Notwithstanding any provisions herein in the contrary, in lieu of
exercising this Warrant as hereinabove permitted, the Holder may elect to
exercise this Warrant or a portion hereof and to pay for the Warrant Shares
issuable upon such exercise by way of cashless exercise (a) by delivery shares
of Common Stock or other securities of the Company already owned by the Holder
with an aggregate Fair Market Value on the date of exercise equal to the
aggregate Exercise Price, subject, however, to the provisions of Section 16(b)
of the Exchange Act or (b) surrendering this Warrant at the principal executive
office of the Company, together with the Notice of Exercise, in which event the
Company shall issue to the Holder that number of Warrant Shares computed using
the following formula:
X= Y x (A-B)
---------
A
Where:
X equals the number of Warrant Shares to be issued to the Holder;
Y equals the number of Warrant Shares purchasable under the Warrant
or, if only a portion of the Warrant is being exercised, the portion
of the Warrant being exercised (at the date of such calculation);
A equals Fair Market Value (at the date of such calculation) of one
share of Common Stock; and
B equals the Exercise Price.
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The Company shall, as promptly as practicable after receipt of the
items required by the preceding paragraphs of this Section 1.2, execute and
deliver or cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of Warrant Shares
specified in such notice. The share certificate or certificates so delivered
shall be in such denominations as shall be specified in such notice and shall be
issued in the name of the Holder or such other name as shall be designated in
such notice; provided, in an opinion of counsel reasonably acceptable to the
Company, the issuance in such other name is permitted under the Act and
applicable state securities laws. Such certificate or certificates shall be
deemed to have been issued, and such Holder or Holders or any other person so
designated to be named therein shall be deemed for all purposes to have become a
Holder of record of such shares, as of the date the aforementioned notice is
received by the Company. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the certificate or certificates,
deliver to the Holder a new Warrant evidencing the right to purchase the
remaining Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant, or, at the request of the
Holder, appropriate notations may be made on this Warrant which shall then be
returned to the Holder. The Company shall pay all expenses, taxes and other
charges payable in connection with the preparation, issuance and delivery of
share certificates and new Warrants, except that, if share certificates or new
Warrants shall be registered in a name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes, if any, payable as a result
of such transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise or promptly upon receipt of a written request
of the Company for payment.
1.3. Reservation of Shares; Shares To Be Fully Paid and
Nonassessable. The Company shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of this Warrant, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the full exercise
hereof; and if at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the full exercise hereof, in
addition to such other remedies as shall be available to the Holder, the Company
will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes, including, without
limitation, engaging in best efforts to obtain the requisite stockholder
approval of any necessary amendment to these provisions. All Warrant Shares
issued upon the exercise of this Warrant, shall be duly and validly issued,
fully paid and nonassessable.
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1.4. No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of Warrant Shares upon exercise of this Warrant. If
any fractions of a share would, but for this Section, be issuable upon any
exercise of this Warrant, in lieu of such fractional share the Company shall pay
to the Holder, in cash, an amount equal to the same fraction of the Fair Market
Value of one share of Common Stock.
1.5. Share Legend. Each certificate for Warrant Shares issued upon
exercise of this Warrant, unless at the time of exercise such shares are
registered under the Act, shall bear a legend substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SECURITIES EVIDENCED BY THIS CERTIFICATE, FILED AND MADE EFFECTIVE UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND SUCH APPLICABLE STATE
SECURITIES LAWS, OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT
AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Act) shall also bear such legend unless, in the opinion of counsel
reasonably acceptable to the Company, the securities represented thereby need no
longer be subject to restrictions on resale under the Act.
ARTICLE II
REPLACEMENTS OF WARRANT CERTIFICATES
1.6. Loss, Theft or Destruction of Warrant Certificates. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or
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security from the Holder satisfactory to the Company, or, in the case of any
such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver, in lieu of such lost, stolen, destroyed or mutilated
Warrant, a new Warrant of like tenor and representing the right to purchase the
same aggregate number of Warrant Shares.
1.7. Change of Principal Executive Office. In the event the Company
shall change the address of its principal executive office, the Company shall
give the holder of this Warrant notice of any such change within a reasonable
time. Any correspondence from the Company to the Holder with an address printed
on Company's letterhead shall fulfill this requirement.
ARTICLE III
ANTIDILUTION PROVISIONS
1.8. Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time pursuant to the
Terms of the Registration Rights Agreement of even date herewith between the
Company and the Holder and upon the occurrence of certain events, as provided in
this Article III. In addition, to the adjustments provided in the Registration
Rights Agreement and in Section 3.2 hereof, the Exercise Price is subject to
adjustment (a) 30 days after the date hereof and/or (b) in the event the
Registration Statement is not filed by September 15, 2000, then on the date the
Registration Statement is filed with the Commission, to the lower of $.40 or 80%
of the Current Market Price.
1.9. Issuance of Additional Securities. In addition to being subject
to adjustment pursuant to Section 3 of the Registration Rights Agreement date of
even date herewith (the "Registration Rights Agreement") in the event that there
is a delay in registering the Warrant Shares, the Exercise Price shall also be
subject to adjustment from time to time as follows:
(1) Issuance of Common Stock. Except as hereinafter provided, in
case the Company shall, at any time after the date first written above, issue,
grant or sell any shares of Additional Stock (as hereinafter defined) for a
consideration, exercise or conversion price per share less than the Exercise
Price in effect immediately prior to the issuance or sale of such shares, or
without
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consideration, then forthwith upon such issuance or sale, the Exercise Price
shall (upon such issuance or sale) be reduced to a price (calculated to the
nearest cent) determined by dividing (i) an amount equal to the sum of (a) the
total number of shares of Common Stock outstanding immediately prior to such
issuance or sale as determined in accordance with Section 3.2(a)(5) below
multiplied by the Exercise Price then in effect, plus (b) the consideration, if
any, received by the Company upon such issuance or sale, by (ii) the total
number of shares of Common Stock outstanding immediately after such issuance or
sale as determined in accordance with Section 3.2(a)(5) below; provided,
however, that in no event shall the Exercise Price be adjusted pursuant to this
computation to a price greater than the Exercise Price in effect immediately
prior to such computation, except as provided in Section 3.2(d)(2) hereof. Upon
each adjustment of the Exercise Price pursuant to this Section 3.2, this Warrant
will after the adjustment evidence the right to purchase, at the adjusted
Exercise Price, the number of shares (calculated to the nearest hundredth)
obtained by (a) multiplying the number of Warrant Shares issuable immediately
prior to the adjustment by the Exercise Price in effect immediately prior to the
adjustment and (b) dividing the resulting product by the Exercise Price in
effect immediately after the adjustment. However, the Company will not be
required to issue a fractional share or to make any payment in lieu of issuing a
fractional share.
"Additional Stock" shall mean Common Stock or options, warrants or
other rights to acquire or securities convertible into or exchangeable for
shares of Common Stock, including shares held in the Corporation's treasury, and
shares of Common Stock issued upon the exercise of any options, rights or
warrants to subscribe for shares of Common Stock and shares of Common Stock
issued upon the direct or indirect conversion or exchange of securities for
shares of Common Stock to a price per share less than the current exercise
price, other than (i) the Warrant Shares, (ii) shares issuable upon the
conversion of the $300,000 8% Convertible Subordinated Promissory Note issued on
the date hereof to the Holder, (iii) Common Stock issued or issuable upon the
exercise of the Company's employee stock option plan to purchase up to 2,000,000
shares of Common Stock (adjusted for any stock splits dividends as
recapitalizations) as a post-closing, fully-diluted as converted basis, and (iv)
in connection with the acquisition by the Company of another entity or the
material assets of another entity.
For the purpose of any computation to be made in accordance with
this Section 3.2(a), the following provisions shall be applicable:
(1) In case of the issuance or sale of shares of Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or, if such securities shall
be sold to underwriters or dealers for public offering without a subscription
offering, the initial public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or purchase
thereof by underwriters or dealers or others
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performing similar services, or any expenses incurred in connection therewith.
(2) In the case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company) of shares of Common
Stock for a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed to be the
fair market value of such consideration as determined in good faith by the
Board.
(3) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of stockholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration.
(4) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common Stock shall be
deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of security holders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (2) of this Section 3.2(a).
(5) The number of shares of Common Stock at any one time outstanding
shall include the aggregate number of shares issued or issuable (subject to
readjustment upon the actual issuance thereof) upon the exercise of options,
rights, warrants and upon the conversion or exchange of convertible or
exchangeable securities.
(2) Issuance of Convertible Securities. In the case the Company
shall at any time after the date hereof issue options, rights, or warrants to
subscribe for shares of Common Stock, or issue any securities convertible into
or exchangeable for shares of Common Stock, for a consideration per share (as
calculated as described below) less than the Exercise Price in effect
immediately prior to issuance of such options, rights or warrants, or such
convertible or exchangeable securities, or without consideration, the Exercise
Price in effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, as the case may be,
shall be reduced to a price determined by making a computation in accordance
with the provisions of Section 3.2(a) hereof, provided that:
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(1) The aggregate maximum number of shares of Common Stock issuable
under such options, rights or warrants shall be deemed to be issued and
outstanding at the time such options, rights or warrants were issued, and shall
be deemed to be issued for a consideration equal to the minimum purchase price
per share provided for in such options, rights or warrants at the time of
issuance, plus the consideration received in connection with sale of the
foregoing, if any, received by the Company for such options, rights or warrants;
provided, however, that upon the expiration or other termination of such
options, rights or warrants, if any thereof shall not have been exercised, the
number of shares of Common Stock deemed to be issued and outstanding pursuant to
this subsection (1) shall be reduced by such number of shares as to which
options, warrants and/or rights shall have expired or terminated unexercised,
and such number of shares of Common Stock shall no longer be deemed to be issued
and outstanding, and the Exercise Price then in effect shall forthwith be
readjusted and thereafter be the price which it would have been had such
adjustment been made on the basis of the issuance only of shares of Common Stock
actually issued or issuable upon the exercise of those options, rights or
warrants as to which the exercise of rights shall not have expired or terminated
unexercised.
(2) The aggregate maximum number of shares of Common Stock issuable
upon conversion or exchange of any convertible or exchangeable securities shall
be deemed to be issued and outstanding at the time of issuance of such
securities, and shall be deemed to be issued for a consideration equal to the
consideration received in connection with the sale of the foregoing received by
the Company for such securities, plus the consideration, if any, receivable by
the Company upon the conversion or exchange thereof; provided, however, that
upon the termination of the right to convert or exchange such convertible or
exchangeable securities (whether by reason of redemption or otherwise), the
number of shares deemed to be issued and outstanding pursuant to this subsection
(2) shall be reduced by such number of shares as to which the conversion or
exchange rights shall have expired or terminated unexercised, and such number of
shares shall no longer be deemed to be issued and outstanding and the Exercise
Price then in effect shall forthwith be readjusted and thereafter be the price
which it would have been had such adjustment been made on the basis of the
issuance only of shares actually issued or issuable upon the conversion or
exchange of those convertible or exchangeable securities as to which the
conversion or exchange rights shall not have expired or terminated unexercised.
(3) If any change shall occur in the price per share provided for in
any of the options, rights or warrants referred to in subsection (1) of this
Section 3.2(b), or in the price per share
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at which the securities referred to in subsection (2) of this Section 3.2(b) are
convertible or exchangeable, such options, rights or warrants or conversion or
exchange rights, as the case may be, shall be deemed to have expired or
terminated on the date when such price change became effective in respect of
shares not theretofore issued pursuant to the exercise or conversion or exchange
thereof, and the Company shall be deemed to have issued upon such date new
options, rights or warrants or convertible or exchangeable securities at the new
price in respect of the number of shares issuable upon the exercise of such
options, rights or warrants or the conversion or exchange of such convertible or
exchangeable securities.
(4) Except as otherwise provided in this Section 3.2(b), no
adjustment of the Exercise Price shall be made upon the actual issuance of such
Common Stock upon exercise of options, rights or warrants or upon the actual
issuance of such Common Stock upon conversion or exchange of any convertible or
exchangeable securities.
(3) Adjustments Generally. No adjustment in the Exercise Price shall
be required unless such adjustment would require an increase or decrease of at
least one cent ($0.01); provided, however, that any adjustments which by reason
of this Section 3.2 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment required to be made hereunder.
All calculations under Section 3.2 shall be made to the nearest one cent
($0.01).
(4) Voting Securities Treated as Common Stock. Common Stock for
purposes of this Section 3.2 shall be deemed to include securities ordinarily
having the right to vote in the election of directors (apart from rights
accruing under special circumstances); provided, however, that the number of
shares of Common Stock deemed issued shall be the number that equals the number
of shares of such security multiplied by a fraction, the numerator of which is
the number of votes each share of such security has in votes for the election of
directors and the denominator of which is the number of votes each share of
Common Stock has in votes for the election of directors; such number of shares
of Common Stock deemed issued shall be recomputed to reflect any change in the
number of votes that either each share of such other security or the Common
Stock has in votes for the election of directors.
(5) Stock Splits, Subdivisions.
(1) In the event the Company should at any time or from time to time
after the date first written above fix a record date for the effectuation of a
split or subdivision of the outstanding shares
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of Common Stock or the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in additional shares of Common
Stock or Common Stock equivalents without payment of any consideration by such
holder for the additional shares of Common Stock or the Common Stock equivalents
(including the additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Exercise
Price shall be appropriately decreased and the number of shares of Common Stock
issuable upon exercise of this Warrant shall be increased in proportion to such
increase in the aggregate of shares of Common Stock outstanding and issuable
with respect to such Common Stock equivalents.
(2) If the number of shares of Common Stock outstanding at any time
after the Series date first written above is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of such
combination, the Exercise Price shall be appropriately increased and the number
of shares of Common Stock issuable on exercise of this Warrant shall be
decreased in proportion to such decrease in outstanding shares.
(6) Certain Distributions. In the event the Corporation shall
declare a distribution payable in securities of other Persons, evidences of
indebtedness issued by the Corporation or other Persons, assets (excluding cash
dividends) or options or rights not referred to in Section 3.2(a) hereof to the
holders of Common Stock, then, in each such case for the purpose of this Section
3.2(f), the Holder shall be entitled to a proportionate share of any such
distribution as though it was the holder of the number of shares of Common Stock
of the Corporation into which its Warrant is exercisable as of the record date
fixed for the determination of the holders of Common Stock of the Corporation
entitled to receive such distribution.
(7) Recapitalizations. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 3.2), provision shall be made so that the Holder shall thereafter
be entitled to receive upon exercise of this Warrant the number of shares of
stock or other securities or property of the Corporation or otherwise, to which
a holder of Common Stock deliverable upon exercise would have been entitled on
such recapitalization. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Section 3.2 with respect to the rights
of the Holder after the recapitalization to the end that the provisions of this
Section 3.2 (including adjustment of the Exercise Price then in effect and the
number of shares issuable upon exercise of this Warrant) shall be applicable
after that event as nearly equivalent as may be practicable.
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(8) No Avoidance. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 3.2 and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the Holder.
(9) Reorganizations, Reclassifications. If any capital
reorganization or reclassification of the capital stock of the Corporation, or a
Capital Reorganization or the sale of all or substantially all of its assets to
another corporation, shall be effected while this Warrant is outstanding in such
a manner that holders of shares of Common Stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for Common Stock,
then, as a condition of such reorganization or reclassification, consolidation,
merger or sale, lawful and adequate provision shall be made whereby the Holder
shall thereafter have the right to receive upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon exercise of this Warrant, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such Common Stock immediately theretofore so receivable had
such reorganization or reclassification, consolidation, merger or sale not taken
place, and in such case appropriate provision shall be made with respect to the
rights and interests of the Holder to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the Exercise Price
and of the number of shares of Common Stock issuable upon exercise thereof)
shall thereafter be applicable, as nearly as may be possible, in relation to any
shares of stock, securities or assets thereafter deliverable upon the exercise
of this Warrant. Prior to or simultaneously with the consummation or any such
consolidation, merger or sale of the Corporation, the survivor or successor
corporation (if other than the Corporation) resulting from such consolidation or
merger or the corporation purchasing such assets shall assume by written
instrument executed and mailed or delivered to the Holder, the obligation to
deliver to such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
receive, and containing the express assumption of such successor corporation of
the due and punctual performance and observance of every provision of this
Warrant (as such may be amended from time to time) to be performed and observed
by the Corporation and of all liabilities and obligations of the Corporation
hereunder with respect to this Warrant.
(10) Notice of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to the Holder, at least 20 days prior to the date specified therein,
a notice specifying the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and character of
such dividend, distribution or right.
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(11) Adjustment Certificate. Upon the occurrence of each adjustment
or readjustment of the Exercise Price or the number of Warrant Shares pursuant
to this Section 3.2, the Corporation, at its expense, shall promptly compute
such adjustment or readjustment in accordance with the terms hereof and prepare
and furnish to the Holder a statement, signed by its chief financial officer or
other appropriate officer, setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the written request at any time of the Holder,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustment and readjustment, (ii) the Exercise Price at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if any,
of other property which at the time would be received upon the exercise of this
Warrant.
ARTICLE IV
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Act" means the Securities Act of 1933, as amended, and any similar
or successor Federal statute, and the rules and regulations of the Commission
(or its successor) thereunder, all as the same shall be in effect at the time.
"Board" means the Board of Directors of the Company.
"Capital Reorganization" shall have the meaning set forth below.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the first
paragraph.
"Company" shall have the meaning set forth in the first paragraph of
this Warrant.
"Current Market Price" means the average of the daily closing prices
per share of Common Stock for the five (5) consecutive trading days immediately
prior to any required adjustment pursuant to the second sentence of Section 3.1
hereof.
"Eastern Time" means Eastern Daylight Time or Eastern Standard Time,
whichever is in effect on the relevant date.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any similar or successor Federal statute, and the rules and
regulations of the Commission (or its successor) thereunder, all as the same
shall be in effect at the time.
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"Exercise Price" means $.40 per Warrant Share until the date
immediately preceding the one-year anniversary of the date first written above,
subject to adjustment pursuant to Article III hereof, subject to adjustment
pursuant the Registration Rights Agreement and pursuant to Article III hereof.
"Expiration Time" means 5:00 p.m. Eastern Time on August 8, 2005.
"Fair Market Value" on any day means (i) if shares of the Common
Stock are listed or admitted for trading on a national securities exchange, the
reported last sales price or, if no such reported sale occurs on such day, the
average of the closing bid and asked prices for the immediately preceding ten
days, in each case on the principal national securities exchange on which the
Common Shares are listed or admitted to trading, (ii) if shares of Common Stock
are not listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices in the over-the-counter market on
such day as reported by Nasdaq or any comparable system or, if not so reported,
as reported by any New York Stock Exchange member firm selected by the Company
for such purpose or (iii) if no such quotations are available on such day, the
fair market value of one share of Common Stock on such day as determined in good
faith by the Board.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant and "Holders" shall include any and all successors, assigns or
designees of the initial Holder with respect to this Warrant.
"Nasdaq" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint state company trust, unincorporated
organization, joint venture, a government authority or other entity of whatever
nature.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments to the Registration
Statement of which such Prospectus is a part, and all material incorporated by
reference in such Prospectus.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits, and
all material incorporated by reference in such Registration Statement.
"Restricted Securities" means the Securities unless and until, in
the case of any such Securities, (i) they have been effectively registered under
the Act and disposed of in accordance with the Registration Statement covering
them, (ii) they are distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Act, or (iii) they are otherwise
freely transferable
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without restriction under the Act, and the holders thereof have delivered an
opinion of their legal counsel to such effect in form and substance reasonably
satisfactory to the Company.
"Securities" shall mean any and all shares of Common Stock issued or
issuable to the Holder or its transferees upon exercise of this Warrant.
"Trading Day" means (a) if shares of Common Stock are listed or
admitted to trading on a national securities exchange, a day on which the
principal national securities exchange on which such shares are listed or
admitted to trading is open for business or(b) if such Common Shares are not so
listed or admitted to trading, a day on which any New York Stock Exchange member
firm is open for business.
"Warrant" and "Warrants" shall mean this warrant and any warrants
issued upon the partial exercise of this warrant.
ARTICLE V
REGISTRATION RIGHTS
1.10. Registration Rights. The Warrant Shares shall be entitled to
registration rights pursuant to that certain Registration Rights Agreement of
even date herewith.
ARTICLE VI
REDEMPTION AND CANCELLATION OF WARRANTS
1.11. Redemption of Warrants. The Warrants are not redeemable by the
Company and the Company has no right to purchase or acquire the Warrants.
1.12. Cancellation of Warrants. The Company shall cancel any Warrant
surrendered for transfer, exchange or exercise.
ARTICLE VII
MISCELLANEOUS
1.13. Notices. All notices, requests and other communications
provided for herein shall be in writing, and shall be deemed to have been made
or given in writing, unless otherwise provided herein, shall be deemed duly
given if delivered personally, or sent by facsimile or registered or certified
mail return receipt
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requested to the parties at the following addresses for such other addresses
that the parties shall specify by like ratio:
(1) if to the Company LCS Golf, Inc.
with a copy to
Littman Krooks Roth & Ball P.C.
655 Third Avenue
New York, New York 10017
Fax (212) 490-2990
(2) If to the holder with a copy to Olshan Grundman Frome
Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
Fax (212) 980-7177
Wireless Acquisition Partners, LLC
505 Park Avenue
New York, New York 10022
Fax (212) 319-8398
Attn: Michael Wainstein
(3) ; provided, however, that notice of a change in the Company's
principal executive office in accordance with Section 2.2 hereof shall
constitute notice of a change of the Company's address for the purposes of any
notice given pursuant to this Warrant.
1.14. Waivers; Amendments. No failure or delay of the Holder in
exercising any right, power or privilege, hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof, or any abandonment or
discontinuance of steps to enforce such a right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived if, but only if,
such amendment, modification or waiver is in writing and is signed by a majority
of the Holders; provided that no amendment, modification or waiver may change
the Exercise Price (including without limitation any adjustments or any
provisions with
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respect to adjustments, the expiration of or the manner of exercising the
Warrants) without the consent in writing of all of the Holders.
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1.15. Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of New York, without regard to
conflicts of laws principles thereof.
1.16. Survival of Agreements; Representations and Warranties, etc.
All warranties, representations and covenants made by the Company herein or in
any certificate or other instrument delivered by or on behalf of it in
connection herewith shall be considered to have been relied upon by the Holders
and shall survive the issuance and delivery of the Warrants and shall continue
in full force and effect so long as this Warrant is outstanding. All statements
in any such certificate or other instrument shall constitute representations and
warranties hereunder.
1.17. Covenants To Bind Successor and Assigns. All the covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company shall bind its successors and assigns, whether or not so
expressed.
1.18. Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired in such jurisdiction and shall not invalidate or render illegal or
unenforceable such provision in any other jurisdiction.
1.19. Headings. The headings used herein are for convenience of
reference only and shall not be deemed to be a part of this Warrant.
VI.1. No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
1.20. Pronouns. The pronouns "it" and "its" herein shall be deemed
to mean "he" and "his" or "she" and "hers", as the context requires.
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IN WITNESS WHEREOF, ___________________________ has caused this
Warrant to be executed in its corporate name by one of its officers thereunto
duly authorized as of the day and year first above written.
LCS GOLF, INC.
By:
-----------------------------
Name:
Title:
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FORM OF NOTICE OF EXERCISE
[To be signed only upon exercise of the Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase _______ shares of
Common Stock which the undersigned is entitled to purchase by the terms of the
within Warrant according to the conditions thereof, and herewith makes payment
of the Exercise Price of such shares in full, as provided in the Warrant. All
shares to be issued pursuant hereto shall be issued in the name of and the
initial address of such person to be entered on the books of the Company shall
be:
The shares are to be issued in certificates of the following
denominations:
--------------------------------
[Type Name of Holder]
--------------------------------
By:
--------------------------------
Title:
Dated:
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