THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THERE IS AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
COMMON STOCK REDEEMABLE WARRANT
NO. ___ To Purchase ______ Shares of Common Stock of
MAGNUM SPORTS & ENTERTAINMENT, INC.
THIS CERTIFIES that, for value received, _______________________________
________________________________ ("Holder", including permitted assigns), is
entitled to subscribe for and purchase from MAGNUM SPORTS & ENTERTAINMENT, INC.,
a Delaware corporation (the "Company"), upon the terms and conditions set forth
herein, at any time or from time to time after the date hereof and on or prior
to 5:00 P.M. on April 18, 2006, New York time(the "Exercise Period"), __________
_______________________ shares (______) of the Company's Common Stock (the
"Warrant Shares"). The purchase price of one share of Common Stock, par value
.01 (the "Common Stock") under this Warrant shall be Seventy Five Cents ($0.75)
(the "Exercise Price"). The Exercise Price and the number of Warrant Shares for
which the Warrant is exercisable shall be subject to adjustment as provided
herein. As used herein the term "this Warrant" shall mean and include this
Warrant and any Warrant or Warrants hereafter issued.
1. This Warrant may be exercised during the Exercise Period, as to the
whole or any lesser number of whole Warrants, by the surrender of this Warrant
(with the election at the end hereof duly executed) to the Company at its office
at 1330 Avenue of the Americas, 39th Floor, New York, New York 10019, or at such
other place as is designated in writing by the Company, together with (a) a
certified or bank cashier's check payable to the order of the Company in an
amount equal to the Exercise Price multiplied by the number of Warrants for
which this Warrant is being exercised (the "Aggregate Exercise Price").
2. Upon each exercise of the Holder's rights to purchase Warrant
Shares, the Holder shall be deemed to be the holder of record of the Warrant
Shares issuable upon such exercise, notwithstanding that the transfer books of
the Company shall then be closed or certificates representing such Warrant
Shares shall not then have been actually delivered to the Holder. As soon as
practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or
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certificates for the Warrant Shares issuable upon such exercise registered in
the name of the Holder or its designee. If this Warrant should be exercised in
part only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the right of the Holder to purchase
the balance of the Warrant Shares subject to purchase hereunder.
3. Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a Warrant Register as they
are issued. 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 suitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or 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 or transfer, or with the knowledge of such facts
that its participation therein amounts to bad faith. This Warrant shall be
transferable only on the books of the Company 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. In all cases of transfer by an attorney, executor, administrator,
guardian, or other legal representative, duly authenticated evidence of his or
its authority shall be produced. Upon any registration of transfer, the Company
shall deliver a new Warrant or Warrants to the person entitled thereto. This
Warrant may be exchanged, at the option of the Holder thereof, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Warrant
Shares, upon surrender to the Company or its duly authorized agent.
Notwithstanding the foregoing, the Company shall have no obligation to cause
Warrants to be transferred on its books to any person if, in the opinion of
counsel to the Company, such transfer does not comply with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
thereunder.
4. The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of Warrant Shares as shall, from time
to time, be sufficient therefor. The Company covenants that all Warrant Shares
issuable upon exercise of this Warrant and upon receipt by the Company of the
full payment therefor, shall be validly issued, fully paid, nonassessable, and
free of preemptive rights.
5. The Exercise Price shall be adjusted as provided for below in this
Section (the Exercise Price, and the Exercise Price, as thereafter then
adjusted, shall be included in the definition of Exercise Price) and the
Exercise Price from time to time shall be further adjusted as provided for below
in this Section. Upon each adjustment of the Exercise Price, the Holder shall
thereafter be entitled to receive upon exercise of this Warrant, at the Exercise
Price resulting from such adjustment, the number of Warrant Shares obtained by
(a) multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of shares of Common Stock purchasable hereunder
immediately prior to such adjustment and (b) dividing the product thereof by the
Exercise Price resulting from such adjustment. The Exercise Price shall be
adjusted as follows:
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(i) In the case of any amendment to the Company's Certificate of
Incorporation to change the designation of the Common Stock or the rights,
privileges, restrictions or conditions in respect to the Common Stock or
division of the Common Stock, this Warrant shall be adjusted so as to provide
that upon exercise thereof, the Holder shall receive, in lieu of each share of
Common Stock theretofore issuable upon such exercise, the kind and amount of
shares, other securities, money and property receivable upon such designation,
change or division by the Holder issuable upon such exercise had the exercise
occurred immediately prior to such designation, change or division. This Warrant
shall be deemed thereafter to provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section. The provisions of this Subsection (i) shall apply in the same manner to
successive reclassifications, changes, consolidations and mergers.
(ii) If the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares of Common Stock, or declare a
dividend or make any other distribution upon the Common Stock payable in shares
of Common Stock, the Exercise Price in effect immediately prior to such
subdivision or dividend or other distribution shall be proportionately reduced,
and conversely, in case the outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased.
(iii) In case the Company shall, at any time prior to exercise of this
Warrant, consolidate or merge with any other corporation or other entity (where
the Company is not the surviving entity) or transfer or sell all or
substantially all of its assets to any other corporation or other entity, then
the Company shall cause effective provision to be made so that the Holder upon
the exercise of this Warrant after the effective date of such transaction shall
be entitled to receive the kind and, amount of shares, evidences of indebtedness
and/or other securities or property receivable on such transaction by the Holder
of the number of shares of Common Stock as to which this Warrant was exercisable
immediately prior to such transaction (without giving effect to any restriction
upon such exercise); and, in any such case, appropriate provision shall be made
with respect to the rights and interest of the Holder to the end that the
provisions of this Warrant shall thereafter be applicable (as nearly as may be
practicable) with respect to any shares, evidences of indebtedness or other
securities or assets thereafter deliverable upon exercise of this Warrant.
6. Whenever the Exercise Price, the number of Warrant Shares, or number
or kind of securities or other property purchasable upon the exercise of this
Warrant, is adjusted, as herein provided, the Company shall immediately
thereafter mail by registered or certified mail, return receipt requested, to
the Holder a notice of such adjustment, or adjustments, signed by its President
or Vice President and by its Treasurer, or Secretary, setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated (including a
description of the basis on which the Board of Directors of the Company made any
determination hereunder), the number of Warrant Shares (and other securities
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or property) purchasable upon the exercise of this Warrant and the Exercise
Price of such Warrant Shares after such adjustment, and setting forth
computation by which such adjustment was made. Such notice, in absence of
manifest error, shall be conclusive evidence of the correctness of such
adjustment.
7. The issuance of any shares or other securities upon the exercise of
this Warrant, and the delivery of certificates or other instruments representing
such shares or other securities, shall be made without charge to the Holder for
any tax or other charge in respect of such issuance. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other
than that of the Holder and the Company shall not be required to issue or
deliver any such certificate unless and until the person or persons requesting
the issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
8. The Company shall file a registration statement with the Securities
and Exchange Commission (the "Commission") to register the Warrants and the
Warrant Shares for resale by holders thereof within sixty days from the date of
the final purchase by any investor of any of the Warrants (the "Final Closing").
The Company shall cooperate with the Commission in its review and approval of
such registration statement and will use its reasonable efforts to diligently
pursue the effectiveness of such Registration Statement within four months from
the date of the final closing of the offering in which the Warrants are being
sold (the "Final Closing"). The Company shall use its reasonable efforts to
maintain the effectiveness of such registration statement covering each of the
Warrants and the Warrant Shares for sixty months from the last date of issuance
of any such Warrants. In furtherance thereof, the Company shall amend the
registration statement from time to time in accordance with applicable legal
requirements and shall prepare and file all required public reports under
applicable securities laws. The Company acknowledges that registration of the
Warrants and the Warrant Shares and the continued status of the Warrants and the
Warrant Shares as registered securities, is a material factor in the decision of
the Holder to purchase a Unit.
(i) In the event that the Company fails to file the Registration
Statement within sixty days from the date of the Final Closing, the Company
shall issue to each Holder additional Units equal to ten percent of the number
of Units purchased by each Holder for each thirty day period beyond the sixty
day period until the Company files such Registration Statement.
(a) The Company has agreed to file an application with Nasdaq to list
the Warrants for trading on the Nasdaq Small Cap Market. The Company will bear
all expenses and pay all the fees incurred in preparing, filing and modifying or
amending such Nasdaq application. The Company shall file such application with
Nasdaq within thirty days from the date of registration of the Shares, the
Warrants and the Warrant Shares with the SEC and shall use its reasonable
efforts to obtain such listing within sixty days from the date of registration
of the Shares, the Warrants and the Warrant Shares with the SEC.
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(i) In the event that the Company fails to file the listing
application with Nasdaq within sixty days after the registration of the Warrants
with the SEC, the Company shall issue to each Purchaser additional Units equal
to ten percent of the number of Units purchased by each Purchaser for each
thirty day period beyond the sixty day period until the Company files such
listing application.
9. Notwithstanding the registration rights granted to the Holder under
Section 8 above, if at any time during the sixty-month period following the
completion of the offering of the Units as set forth in that certain
Confidential Private Placement Memorandum dated March 30, 2001, a registration
statement covering the Warrants and the Warrant Shares is not currently in
effect and the Company files a registration statement (other than on Form S-4,
Form S-8, or any successor form) with the Securities and Exchange Commission
(the "Commission") the Company shall give all the then holders of any Warrants
prior written notice of the filing of such registration statement. If requested
by any holder in writing within 30 days after the sending of of any such notice,
the Company shall, at the Company's sole expense (other than the fees and
disbursements of counsel for such holder) include such holder's Warrants and
Warrant Shares in such registration statement.
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10. The Company shall file an application with Nasdaq to list the
Warrants so that they may be publicly traded on the Nasdaq Small Cap Market. The
Company shall file such application with Nasdaq within thirty days after the
date that the Company obtains the registration of the Warrants and the Warrant
Shares with the Commission and shall use its reasonable efforts to obtain such
listing within sixty days from the date of such registration with the
Commission.
(i) In the event that the Company fails to file the listing
application with Nasdaq within thirty days after the registration of the
Warrants with the SEC, the Company shall issue to each Holder additional
Warrants equal to ten percent of the number of Warrants purchased by each Holder
for each thirty day period beyond the thirty day period until the Company files
such listing application with Nasdaq.
11. The Company may, at its option, call for redemption up to 50% of
the Warrants that are sold in the Offering in one or more calls for redemption
at a call price of Ten Cents ($.10) per Warrant (the "Call Price"), at any time,
provided that:
(a) the average of the Company's closing minimum bid price of its
Common Stock shall have been greater than or equal to $2.50 per share of Common
Stock for a period of 20 consecutive trading days ending within 30 days of the
date that notice of such call shall have been given by the agent for the
Warrants (the "Warrant Agent") to the registered holders of the Warrants and (b)
the Company is in compliance with its obligations under Section 8 of this
Agreement to register under the Securities Act the Warrants and the Warrant
Shares both during the 20 consecutive trading day period and during the 30 day
redemption period set forth in subsection (a) of this Section 11.
12. On or prior to the opening of business on the final date set for
redemption of any Warrants (the "Call Date"), the Company will deposit with the
Warrant Agent funds in form satisfactory to the Warrant Agent sufficient to
purchase all the Warrants which are to be called. Payment of the Call Price will
be made by the Warrant Agent upon presentation and surrender of the Warrant
Certificates representing such Warrants to the Warrant Agent at its address set
forth in the redemption notice.
13. Because the Company may only call up to 50% of the Warrants sold in
the Offering, the Warrants chosen to be called shall be selected by the Warrant
Agent in such manner as the Warrant Agent shall deem fair and equitable,
including without limitation selection by lot.
14. Unless registered pursuant to the provisions of Section 8 hereof,
the Warrant and the Warrant Shares issued on exercise of the Warrant shall be
subject to a stop transfer order and the certificate or certificates evidencing
such Warrant Shares shall bear the following legend:
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"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN OPINION OF COUNSEL RESONABLY
SATISFACTORY TO THE COMPANY THAT THERE IS AN AVAILABLE EXMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT."
15. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction, or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), and upon reimbursement of the Company's reasonable
incidental expense, and execution of such a form of lost Warrant affidavit and
indemnity as the Company shall reasonably require, the Company shall execute and
deliver to the Holder thereof a new Warrant of like date, tenor, and
denomination.
16. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
17. This Warrant shall be construed in accordance with the laws of the
State of New York applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
18. The Company irrevocably consents to the jurisdiction of the courts
of the State of New York and of any federal court located in such State in
connection with any action or proceeding arising out of or relating to this
Warrant, any document or instrument delivered pursuant to, in connection with or
simultaneously with this Warrant, or a breach of this Warrant or any such
document or instrument. Each party waives its right to a trial by jury. Each
party to this warrant irrevocably consents to the service or process in any such
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth herein.
Dated: ______, 2001
MAGNUM SPORTS & ENTERTAINMENT, INC.
By:
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Title:
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ______________________________hereby sells, assigns, and
transfers unto ___________ a Warrant to purchase ______ shares of Common Stock,
par value $.01 per share, of Magnum Sports & Entertainment, Inc. (the
"Company"), together with all right, title, and interest therein, and does
hereby irrevocably constitute and appoint American Stock Transfer Co. to
transfer such Warrant on thc books of the Company, with full power of
substitution.
Dated:
--------------------------
---------------------------------
Signature
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NOTICE
The signature on the foregoing Assignment must correspond to the name as written
upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
To: Magnum Sports & Entertainment, Inc.
1330 Avenue of the Americas, 39th Floor
New York, New York 10019
ELECTION TO EXERCISE
The undersigned hereby exercises his or its rights to purchase _______ shares of
Common Stock of MAGNUM SPORTS & ENTERTAINMENT, INC. herewith in the amount of
$_________, together with all applicable transfer taxes, if any, n accordance
with the terms of the attached Warrant. The undersigned further requests that
certificates for such securities be issued in the name of, and delivered to:
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of shares of Common Stock shall not be all the shares of
Common Stock subject to the within Warrant, please issue a replacement Warrant
to purchase _________shares on the same terms and conditions and deliver to me
said replacement Warrant at the address stated below.
Dated:
--------------------------------
Signature
Address:
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