THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES ACT, AND MAY NOT BE
TRANSFERRED WITHOUT REGISTRATION UNDER SUCH
ACTS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE
COMMON STOCK
TRANS WORLD GAMING CORP.
(a Nevada corporation)
Dated: July 1, 1996
THIS CERTIFIES that ___________________ (together with its assigns,
the "Holder") is entitled to purchase from Trans World Gaming Corp., a Nevada
corporation ("Company") up to ___________ shares of the Company's common stock,
par value $.001 per share (the "Common Stock"), at a purchase price of $1.00 per
share of Common Stock (the "Warrant Price"), subject to adjustment as hereafter
provided.
This Warrant is issued pursuant to a Subscription Agreement dated July
1, 1996 (the "Subscription Agreement"), among the Company, Trans World Gaming of
Louisiana, Inc., the Holder and certain other subscribers.
1. EXERCISE OF THE WARRANT.
The rights represented by this Warrant may be exercised at any time on
or before 5:00 p.m., New York time, on June 30, 2001, in whole or in part, by
(i) the surrender of this Warrant (with the purchase form at the end of hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); (ii) payment to the Company of the Warrant Price then in effect for
the number of shares of Common Stock specified in the above-mentioned purchase
form together with applicable stock transfer taxes, if any; and (iii) delivery
to the Company of a duly executed agreement signed by the person(s) designated
in the purchase form to the effect that such person(s) agree(s) to be bound by
the provisions of Paragraph 5 and subparagraphs (b), (c) and (d) of Paragraph 6
hereof. This Warrant shall be deemed to have been exercised, in whole or in
part to the extent specified, immediately prior to the close of business on the
date this Warrant is surrendered and payment is made in accordance with the
foregoing provisions of this Paragraph 1, and the person or persons in whose
name or names the certificates for the Securities shall be issuable upon such
exercise shall become the Holder or Holders of record of such Common Stock at
that time and date. The Common Stock so purchased shall be delivered to the
Holder within a reasonable time, not exceeding ten (10) business days, after the
rights represented by this Warrant shall have been so exercised.
2. TRANSFER.
This Warrant may be assigned in whole or in part by the Holder by
(i) completing and executing the form of assignment at the end hereof and
(ii) surrendering this Warrant with such duly completed and executed assignment
form for cancellation, accompanied by funds sufficient to pay any transfer tax,
at the office or agency of the Company referred to in Paragraph 1 hereof;
whereupon the Company shall issue, in the name or names specified by the Holder
(including the Holder) a new Warrant or Warrants of like tenor and representing
in the aggregate rights to purchase the same number of shares of Common Stock as
are then purchasable hereunder.
3. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees that all Common Stock and
Common Stock issuable upon exercise of this Warrant will, upon issuance, be duly
and validly issued, fully paid and nonassessable and no personal liability will
attach to the holder thereof by reason of being such a holder, other than as set
forth herein.
(b) The Company covenants and agrees that during the period
within which this Warrant may be exercised, the Company will at all times have
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authorized and reserved a sufficient number of shares of Common Stock to provide
for the exercise of this Warrant.
(c) The Company covenants and agrees that for so long as the
Common Stock shall be outstanding, the Company shall use its best efforts to
cause all shares of Common Stock issuable upon the exercise of the Warrant to be
listed on or quoted by The NASDAQ National Market System or on the NASDAQ Stock
Market and the Boston Stock Exchange.
4. NO RIGHTS AS STOCKHOLDER.
This Warrant shall not entitle the Holder to any voting rights or
other rights as a stockholder of the Company, either at law or in equity, and
the rights of the Holder are limited to those expressed in this Warrant and are
not enforceable against the Company except to the extent set forth herein.
5. REGISTRATION.
(a) The Holder shall have the right to have the shares of
Common Stock underlying this Warrant registered as part of the next public
offering of the Common Stock. If no Common Stock offering has occurred by
December 31, 1997, then upon the written request of the holders of Warrants
issued on the date hereof and exercisable for not less than 600,000 shares of
Common Stock (as such number may be adjusted under Paragraph 7), and on a
one-time basis, the Company shall file and use its best efforts to cause to
be declared effective by the Securities and Exchange Commission a registration
statement or post-effective amendment thereto as permitted under the
Securities Act of 1933, as amended (the "Act"), covering the sale by the
Holder of (i) this Warrant or any portion hereof, (ii) the Common Stock
issuable upon exercise of this Warrant or any portion hereof, or (iii) both,
as the Holder may elect (the "Registerable Securities"). The Company shall
supply prospectuses in order to facilitate the public sale or other
disposition of the Registerable Securities, use its best efforts to register
and qualify any of the Registerable Securities for sale in such states as
such Holder reasonably designates and do any and all other acts and things
which may be necessary to enable such Holder to consummate the public sale of
the Registerable Securities, and furnish indemnification in the manner
provided in Paragraph 6 hereof. The Holder shall furnish information
reasonably requested by the Company in accordance with such post-effective
amendments or registration statements, including its intentions with respect
thereto, and shall furnish indemnification as set forth in Paragraph 6.
(b) The Company will maintain such registration statement or
post-effective amendment current and effective under the Act until the
expiration of the exercisability of this Warrant; PROVIDED, HOWEVER, that upon
fifteen days' advance written notice to the Holder the Company may suspend the
availability of such
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registration statement or post-effective amendment for not more than three
periods of three months each (a "Suspension Period"), PROVIDED FURTHER, HOWEVER,
that no Suspension Period may commence sooner than three months after the
termination of any other Suspension Period, and there may be no more than two
three month Suspension Periods in any twelve month time period.
(c) The Company shall bear the entire cost and expense of any
registration of securities under Paragraph 5 hereof. Notwithstanding the
foregoing, any Holder whose Registerable Securities are included in any such
registration statement pursuant to this Paragraph 5 shall, however, bear the
fees of any counsel retained by him and any transfer taxes or underwriting
discounts or commissions applicable to the Registerable Securities sold by him
pursuant thereto.
6. INDEMNIFICATION.
(a) Whenever pursuant to Paragraph 5 a registration statement
relating to any Registerable Securities is filed under the Act, amended or
supplemented, the Company will indemnify and hold harmless each Holder of the
Registerable Securities covered by such registration statement, amendment or
supplement (such holder hereinafter referred to as the "Distributing Holder"),
each person, if any, who controls (within the meaning of the Act) the
Distributing Holder, and each officer, employee, partner or agent of the
Distributing Holder, and each underwriter (within the meaning of the Act) of
such securities and each person, if any, who controls (within the meaning of the
Act) any such underwriter and each officer, employee, agent or partner of such
underwriter against any losses, claims, damages or liabilities, joint or
several, to which the Distributing Holder, any such underwriter or any other
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement or alleged
untrue statement of any material fact contained in any such registration
statement or any preliminary prospectus or final prospectus constituting a part
thereof or any amendment or supplement thereto, or arise out of or are based
upon the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
the Distributing Holder and each such underwriter or such other person for any
legal or other expenses reasonably incurred by the Distributing Holder, or
underwriter or such other person, in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case (i) to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, said preliminary prospectus, said final prospectus
or said amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder, any other Distributing Holder
or any such underwriter for use in the preparation thereof, and (ii) such
losses, claims, damages or liabilities arise out of or are based upon any actual
or alleged untrue
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statement or omission made in or from any preliminary prospectus, but corrected
in the final prospectus, as amended or supplemented.
(b) Whenever pursuant to Paragraph 5 a registration statement
relating to the Registerable Securities is filed under the Act, or is amended or
supplemented, the Distributing Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed said
registration statement and such amendments and supplements thereto, and each
person, if any, who controls the Company (within the meaning of the Act) against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in any such registration statement or
any preliminary prospectus or final prospectus constituting a part thereof, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent that such untrue statement or
alleged untrue statement or omission was made in said registration statement,
said preliminary prospectus, said final prospectus or said amendment or
supplement in reliance upon and in conformity with written information furnished
by such Distributing Holder for use in the preparation thereof; and will
reimburse the Company or any such director, officer or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this
Paragraph 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party, give the indemnifying party notice of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Paragraph 6.
(d) In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnified part to such
indemnified party of its election to so assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Paragraph 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
7. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SECURITIES.
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(a) The Warrant Price shall be subject to adjustment from time to
time as follows:
(i) In case the Company shall at any time after the date
hereof pay a dividend in shares of Common Stock or make a distribution in shares
of Common Stock, then upon such dividend or distribution the Warrant Price in
effect immediately prior to such dividend or distribution shall forthwith be
reduced to a price determined by dividing:
(a) an amount equal to the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution
multiplied by the Warrant Price in effect immediately prior to such dividend or
distribution, by
(b) the total number of shares of Common Stock
outstanding immediately after such issuance or sale.
For the purposes of any computation to be made in accordance
with the provisions of this clause (i), the following provisions shall be
applicable: 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 date following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution.
(ii) In case the Company shall at any time subdivide or
combine the outstanding Common Stock, the Warrant Price shall forthwith be
proportionately decreased in the case of subdivision or increased in the case of
combination to the nearest one cent. Any such adjustment shall become effective
at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each
quarterly fiscal period of the Company during which the Warrant Price has been
adjusted as herein provided, the Company shall:
(a) Deliver to the Holder a certificate signed by the
President or Vice President of the Company and by the Treasurer or Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company, showing in
detail the facts requiring all such adjustments occurring during such period and
the Warrant Price after each such adjustment.
(b) Notwithstanding anything contained herein to the
contrary, no adjustment of the Warrant Price shall be made if the amount of such
adjustment shall be less than $.01, but in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time and
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together with the next subsequent adjustment which, together with any adjustment
so carried forward, shall amount to not less than $.01.
(b) In the event that the number of outstanding shares of Common
Stock is increased by a stock dividend payable in Common Stock or by a
subdivision of the outstanding Common Stock, then, from and after the time at
which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of
this Section by reason of such dividend or subdivision, the number of shares of
Common Stock issuable upon the exercise of the Warrant shall be increased in
proportion to such increase in outstanding shares. In the event that the number
of shares of Common Stock outstanding is decreased by a combination of the
outstanding Common Stock, then, from and after the time at which the adjusted
Warrant Price becomes effective pursuant to Subsection (b) of this Section by
reason of such combination, the number of shares of Common Stock issuable upon
the exercise of the Warrant shall be decreased in proportion to such decrease in
the outstanding shares of Common Stock.
(c) In case of any reorganization or reclassification of the
outstanding Common Stock (other than a change in par value, or from par value to
no par value, or as a result of a subdivision or combination), or in case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any reclassification of the
outstanding Common Stock), or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the holder of the Warrant then outstanding shall thereafter have the
right to purchase the kind and amount of shares of Common Stock and other
securities and property receivable upon such reorganization, reclassification,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock which the holder of the Warrant shall then be entitled to purchase;
such adjustments shall apply with respect to all such changes occurring between
the date of this Warrant Agreement and the date of exercise of the Warrant.
(d) Subject to the provisions of this Section, in case the
Company shall, at any time prior to the exercise of the Warrant, make any
distribution of its assets to holders of its Common Stock as a liquidating or a
partial liquidating dividend, then if the holder of the Warrant exercises his
Warrant after the record date for the determination of those holders of Common
Stock entitled to such distribution of assets as a liquidating or partial
liquidating dividend, he shall be entitled to receive for the Warrant Price per
Warrant, in addition to each share of Common Stock, the amount of such
distribution (or, at the option of the Company, a sum equal to the value of any
such assets at the time of such distribution as determined by the Board of
Directors of the Company in good faith), which would have been payable to the
holder had he been the holder of record of the Common Stock receivable upon
exercise of his Warrant on the record date for the determination of those
entitled to such distribution.
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(e) In case of the dissolution, liquidation or winding-up of the
Company, all rights under the Warrant shall terminate on a date fixed by the
Company, such date to be no earlier than ten (10) days prior to the
effectiveness of such dissolution, liquidation or winding-up and not later than
five (5) days prior to such effectiveness. Notice of such termination of
purchase rights shall be given to the last registered holder of this Warrant, as
the same shall appear on the books of the Company, by registered mail at least
thirty (30) days prior to such termination date.
(f) In case the Company shall, at any time prior to the
expiration of this Warrant and prior to the exercise thereof, offer to the
holders of its Common Stock any rights to subscribe for additional shares of any
class of the Company, then the Company shall give written notice thereof to the
last registered holder thereof not less than thirty (30) days prior to the date
on which the books of the Company are closed or a record date is fixed for the
determination of the stockholders entitled to such subscription rights. Such
notice shall specify the date as to which the books shall be closed or record
date fixed with respect to such offer of subscription and the right of the
holder thereof to participate in such offer of subscription shall terminate if
this Warrant shall not be exercised on or before the date of such closing of the
books or such record date.
(g) Any adjustment pursuant to the aforesaid provision shall be
made on the basis of the number of shares of Common Stock which the holder
thereof would have been entitled to acquire by the exercise of the Warrant
immediately prior to the event giving rise to such adjustment.
(h) Irrespective of any adjustments in the Warrant Price or the
number or kind of shares purchasable upon exercise of this Warrant, Warrants
previously or thereafter issued may continue to express the same price and
number and kind of shares as are stated in this Warrant.
(i) The Company may retain a firm of independent public
accountants (who may be any such firm regularly employed by the Company) to make
any computation required under this Section.
(j) If at any time, as a result of an adjustment made pursuant
to this Paragraph 7, the Holder of this Warrant shall become entitled to
purchase any securities other than shares of Common Stock, thereafter the number
of such securities so purchasable upon exercise of each Warrant and the Warrant
Price for such shares shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock.
8. FRACTIONAL SHARES.
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The Company shall not be required to issue fractions of shares of
Common Shares on the exercise of this Warrant; provided, however, that if a
Holder exercises all the Warrants held of record by such Holder, the fractional
interests shall be eliminated by rounding any fraction up to the nearest whole
number of shares.
9. MISCELLANEOUS.
(a) This Warrant shall be governed by and in accordance with the
laws of the State of New York.
(b) All notices, requests, consents and other communications
hereunder shall be made in writing and shall be deemed to have been duly made
when delivered, or mailed by registered or certified mail, return receipt
requested: (i) if to a Holder, to the address of such Holder as shown on the
books of the Company, or (ii) if to the Company, One Penn Plaza, New York, NY
10119.
(c) All the covenants and provisions of this Warrant by or for
the benefit of the Company and the Holders inure to the benefit of their
respective successors and assigns hereunder.
(d) Nothing in this Warrant shall be construed to give to any
person or corporation other than the Company and the registered Holder or
Holders, any legal or equitable right, for the sole and exclusive benefit of the
Company and the Holder or Holders.
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IN WITNESS WHEREOF, Trans World Gaming Corp. has caused this Warrant
to be signed by its duly authorized officer and this Warrant to be dated July 1,
1996.
TRANS WORLD GAMING CORP.
By:
----------------------------
Xxxxxxx Xxxxxxxxxx
President and
Chief Executive Officer
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