THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND, IF EXERCISED, THE UNDERLYING
SHARES OF COMMON STOCK, HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
THEIR DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
ZENASCENT, INC.
WARRANT TO PURCHASE COMMON STOCK
NO. W APRIL 30, 2002
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VOID AFTER APRIL 30, 2007
THIS CERTIFIES THAT, for value received, XXXXXXXXXX INVESTMENTS, LLC with an
address at c/o Law Offices of Xxxxxxxx X. Xxxxxxxx, Xx., 000 Xxxxxxx Xxxxx, Xxxx
Xxxxx, Xxxxxxx 00000 or its assigns (the "HOLDER"), is entitled to subscribe for
and purchase at the Exercise Price (defined below) from ZENASCENT, INC., a
Delaware corporation with its principal office at 00 Xxxx 00 Xxxxxx, Xxxxx 000,
Xxx Xxxx, Xxx Xxxx 00000 (the "CORPORATION") up to One Million (1,000,000)
shares of common stock, par value $.01 per share, of the Corporation (the
"COMMON STOCK").
1. DEFINITIONS. AS USED HEREIN, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
RESPECTIVE MEANINGS:
(A) "Exercise Period" shall mean the period commencing with the date
hereof and ending five years from the date hereof, unless sooner terminated as
provided below.
(B) "Exercise Price" shall mean $1.24, subject to adjustment pursuant
to Section 5 below.
(C) "Exercise Shares" shall mean the shares of Common Stock issuable
upon exercise of this Warrant.
2. EXERCISE OF WARRANT. THE RIGHTS REPRESENTED BY THIS WARRANT MAY BE
EXERCISE IN WHOLE OR IN PART AT ANY TIME DURING THE EXERCISE PERIOD, BY DELIVERY
OF THE FOLLOWING TO THE CORPORATION AT ITS ADDRESS SET FORTH ABOVE (OR AT SUCH
OTHER ADDRESS AS IT MAY DESIGNATE BY NOTICE IN WRITING TO THE HOLDER):
(A) An executed Notice of Exercise in the form attached hereto;
(B) Payment of the Exercise Price either in cash or by check; and
(C) This Warrant.
This Warrant may also be exercised by the surrender of this Warrant
(with the cashless exercise form attached hereto duty executed) (a "Cashless
Exercise") to the Corporation. Such presentation and surrender shall be deemed a
waiver of the Holder's obligation to pay the aggregate Exercise Price, or the
proportionate part thereof if this Warrant is exercised in part. In the event of
a Cashless Exercise, the Holder shall exchange its Warrant for that number of
shares of Common Stock determined by multiplying the number of shares of Common
Stock subject to such Cashless Exercise by a fraction, the numerator of which
shall be the difference between the then current market price per share of the
Common Stock and the per share Exercise Price, and the denominator of which
shall be the then current market price per share of the Common Stock. For
purposes of any computation under this Section, the then current market price
per share of Common Stock at any date (the "Market Price") shall be deemed to be
the last sales price of the Common Stock on the business day prior to the date
of the Cashless Exercise or, in case no such reported sales take place on such
day, the average of the last reported bid and asked prices of the Common Stock
on such day, in either case as reported on the OTC Bulletin Board of the
National Association of Securities Dealers, Inc. (the "OTCBB"), or other similar
organization if the OTCBB is no longer reporting such information, or if not so
available, the fair market price of the Common Stock as determined by the Board
of Directors.
Upon the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased, registered in
the name of the Holder or persons affiliated with the Holder, if the Holder so
designates, shall be issued and delivered to the Holder within a reasonable time
after the rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Corporation are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
3. COVENANTS OF THE CORPORATION.
3.1 Covenants as to Exercise Shares. The Corporation covenants
and agrees that all Exercise Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued and
outstanding, fully
paid and nonassessable, and free from all taxes, liens and charges with respect
to the issuance thereof. The Corporation further covenants and agrees that the
Corporation will at all times during the Exercise Period have authorized and
reserved, free from preemptive rights, a sufficient number of shares of its
Common Stock to provide for the exercise of the rights represented by this
Warrant. If at any time during the Exercise Period the number of authorized but
unissued shares of Common Stock shall not be sufficient to permit exercise of
this Warrant, the Corporation 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.
3.2 No Impairment. Except and to the extent as waived or
consented to by the Holder, the Corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, 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
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
3.3 Notices 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 which is the same as cash dividends paid in
previous quarters) or other distribution, the Corporation shall mail to the
Holder, at least ten (10) days prior to the date specified herein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
4. REPRESENTATIONS OF HOLDER.
4.1 Acquisition of Warrant for Personal Account. The Holder
represents and warrants that it is acquiring the Warrant solely for its account
for investment and not with a view to or for sale or distribution of said
Warrant or any part thereof. The Holder also represents that the entire legal
and beneficial interests of the Warrant and Exercise Shares the Holder is
acquiring is being acquired for, and will be held for, its account only.
4.2 Securities Are Not Registered.
(a) The Holder understands that the Warrant and the Exercise
Shares have not been registered under the Securities Act of 1933, as amended
(the "Act") on the basis that no distribution or public offering of the stock of
the Corporation is to be effected. The Holder realizes that the basis for the
exemption may not be present if, notwithstanding its representations, the Holder
has a present intention of acquiring the securities for a fixed or determinable
period in the future, selling (in connection with a
distribution or otherwise), granting any participation in, or otherwise
distributing the securities. The Holder has no such present intention.
(b) The Holder recognizes that the Warrant and the Exercise
Shares must be held indefinitely unless they are subsequently registered under
the Act or an exemption from such registration is available. The Holder
recognizes that the Corporation has no obligation to register the Warrant or the
Exercise Shares of the Corporation, or to comply with any exemption from such
registration.
(c) The Holder is aware that neither the Warrant nor the
Exercise Shares may be sold pursuant to Rule 144 adopted under the Act unless
certain conditions are met, including, among other things, the existence of a
public market for the shares, the availability of certain current public
information about the Corporation, the resale following the required holding
period under Rule 144 and the number of shares being sold during any three month
period not exceeding specified limitations. Holder is aware that the conditions
for resale set forth in Rule 144 have not been satisfied and that the
Corporation presently has no plans to satisfy these conditions in the
foreseeable future.
4.3 Disposition of Warrant and Exercise Shares. The Holder
understands and agrees that all certificates evidencing the shares to be issued
to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Corporation by reason of stock dividends,
split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, or the like prior to the
exercise of this Warrant (or portion thereof), the number and class of shares
available under the Warrant (or portion thereof) in the aggregate and the
Exercise Price shall be correspondingly adjusted to give the Holder of the
Warrant (or portion thereof), on exercise for the same aggregate Exercise Price,
the total number, class, and kind of shares as the Holder would have owned had
the Warrant (or portion thereof) been exercised prior to the event and had the
Holder continued to hold such shares until after the event requiring adjustment.
The form of this Warrant need not be changed because of any adjustment in the
number of Exercise Shares subject to this Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto. All
Exercise Shares (including fractions) issuable upon exercise of this Warrant may
be aggregated for
purposes of determining whether the exercise would result in the issuance of any
fractional share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Corporation shall, in lieu of issuance of
any fractional share, pay the Holder otherwise entitled to such fraction a sum
in cash equal to the product resulting from multiplying the then current fair
market value of an Exercise Share by such fraction.
7. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not entitle
the Holder to any voting rights or other rights as a stockholder of the
Corporation.
8. TRANSFER OF WARRANT. Subject to applicable laws, the restriction on
transfer set forth on the first page of this Warrant, this Warrant and all
rights hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto to any transferee designated by Holder. The transferee shall sign an
investment letter in form and substance satisfactory to the Corporation.
9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
10. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by telex, telegram,
express mail or other form of rapid communications, if possible, and if not then
such notice or communication shall be mailed by first-class mail, postage
prepaid, addressed in each case to the party entitled thereto at the following
addresses: (a) if to the Corporation, to Zenascent, Inc., Attention: Secretary,
00 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 and (b) if to the Holder, to
Xxxxxxxxxx Investments, LLC, c/o Law Offices of Xxxxxxxx X. Xxxxxxxx, Xx., 000
Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, or at such other address as one party
may furnish to the other in writing. Notice shall be deemed effective on the
date dispatched if by personal delivery, telecopy, telex or telegram, two days
after mailing if by express mail, or three days after mailing if by first-class
mail.
11. REGISTRATION RIGHTS. Promptly following the merger of a wholly-owned
subsidiary of the Corporation with and into Xxxxxx Xxxxxxx Boxing, Inc., a
Delaware corporation, the Corporation shall use its best efforts to prepare,
file and mail to its stockholders a Proxy Statement and hold a meeting of the
Corporation's stockholders related to the actions described in the Proxy
Statement (the "Meeting Date"). The Corporation shall use its reasonable best
efforts to prepare and file with the Securities and Exchange Commission within
45 days after the Meeting Date and have declared effective under the Securities
Act within 150 days following the Meeting Date a registration statement on Form
SB-2 or S-l or such other form as is appropriate in order to register the
Exercise Shares.
12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities
hereunder shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by its duly authorized officer as of April 30, 2002.
ZENASCENT, INC.
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Secretary
NOTICE OF EXERCISE
TO: ZENASCENT, INC.
(1) The undersigned hereby elects to purchase shares of the
Common Stock of ZENASCENT, INC. (the "COMPANY") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
(3) The undersigned represents that (i) the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares; (ii) the undersigned is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision regarding its investment in the
Company; (iii) the undersigned is experienced in making investments of this type
and has such knowledge and background in financial and business matters that the
undersigned is capable of evaluating the merits and risks of this investment and
protecting the undersigned's own interests; (iv) the undersigned understands
that the shares of Common Stock issuable upon exercise of this Warrant have not
been registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), by reason of a specific exemption from the registration provisions of the
Securities Act, which exemption depends upon, among other things, the bona fide
nature of the investment intent as expressed herein, and, because such
securities have not been registered under the Securities Act, they must he held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available; (v) the undersigned is aware that
the aforesaid shares of Common Stock may not be sold pursuant to Rule 144
adopted under the Securities Act unless certain conditions are met and until the
undersigned has held the shares for the number of years prescribed by Rule 144,
that among the conditions for use of the Rule is the availability of current
information to the public about the Company and the Company has not made such
information available and has no present plans to do so; and (vi) the
undersigned agrees not to make any disposition of all or any part of the
aforesaid shares of Common Stock unless and until there is then in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said
registration statement, or the undersigned has provided the Company with an
opinion of counsel satisfactory to the Company, stating that such registration
is not required.
----------------------------------- ----------------------------
(Print Name) (Signature)
Date:
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ASSIGNMENT FORM
(To assign the foregoing Warrant,
execute this form and supply required
information. Do not use this form to
purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name:
--------------------------------------------------------------------
(Please Print)
Address:
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(Please Print)
Dated:
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Holder's Signature:
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Holder's Address:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
CASHLESS EXERCISE
The undersigned Holder, pursuant to the provisions of the foregoing
Warrant, hereby irrevocably elects to exchange its Warrant for shares
of Common Stock of Zenascent, Inc. pursuant to the Cashless Exercise provisions
of said Warrant.
Dated: Signature:
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Name:
----------------------------
Address:
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