Exhibit 10.12
Form of Note and Warrant Purchase Agreement
XXXXXX XXXXXXX PROMOTIONS, LTD.
NOTE AND WARRANT PURCHASE AGREEMENT
THIS NOTE AND WARRANT PURCHASE AGREEMENT is made as of the ___ day of
_______, 200_ (the "EFFECTIVE DATE") by and among XXXXXX XXXXXXX PROMOTIONS,
LTD., a New York corporation (the "COMPANY"), and [Purchaser] (the "PURCHASER").
The parties hereby agree as follows:
AMOUNT AND TERMS OF THE LOAN; ISSUANCE OF WARRANTS
1.1 THE LOAN. Subject to the terms of this Agreement, the Purchaser
agrees to lend to the Company the amount set forth in the promissory
note in substantially the form attached hereto as Exhibit A (the
"NOTE"). The amount of the Note is also the "LOAN AMOUNT." Unless
otherwise defined, the capitalized terms herein shall have the
meanings assigned to such terms in the Note.
1.2 ISSUANCE OF WARRANTS. The Company will sell to the Purchaser, upon
the closing of the Merger Agreement by and among Xxxxxx Xxxxxxx
Boxing, Inc., the Company, Zenascent, Inc. ("Zenascent"), Xxxxxx
Xxxxxxx and Xxxxx XxXxxxxxx, a warrant to purchase [1/2 of the Loan
Amount] shares of common stock, par value $.001 per share (the
"Zenascent Common Stock"), of Zenascent (the "Merger Agreement").
The warrant shall be in substantially the form attached hereto as
Exhibit B (the "WARRANT"). Prior to issuance of the Warrant, the
Purchaser hereby agrees to pay to the Company the Aggregate Warrant
Purchase Price of $0.001 per share covered by the Warrant.
1.3 The Company and the Purchasers, having adverse interests and as a
result of arm's length bargaining, agree that:
(a) Neither the Purchaser nor any affiliated company has rendered
any services to the Company in connection with this Agreement;
(b) The Warrant is not being issued as compensation;
(c) The aggregate fair market value of the Note, if issued apart
from the Warrant, is $[AMOUNT OF NOTE], and the aggregate fair
market value of the Warrant, if issued apart from the Note, is
$0.001 per share covered by the Warrant; and
(d) All tax returns and other information return of each party
relative to this Agreement and the Note and Warrant issued pursuant
hereto shall consistently reflect the matters agreed to in (a)
through (c) above.
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THE CLOSING
1.4 CLOSING DATE. The closing of the purchase and sale of the Note
(the "CLOSING") shall be held on the Effective Date, or at
such other time as the Company and the Purchaser shall agree
(the "CLOSING DATE").
1.5 DELIVERY. At the Closing (i) the Purchaser will deliver to the
Company a check or wire transfer funds in the amount of the
Loan Amount; and (ii) the Company shall issue and deliver to
the Purchaser a Note in favor of the Purchaser payable in the
principal amount of the Loan Amount.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents and warrants to each Purchaser as
follows:
1.6 CORPORATE POWER. The Company will have at the Closing Date all
requisite corporate power to execute and deliver this
Agreement and to carry out and perform its obligations under
the terms of this Agreement.
1.7 AUTHORIZATION. All corporate action on the part of the
Company, its directors and its shareholders necessary for the
authorization, execution, delivery and performance of this
Agreement by the Company and the performance of the Company's
obligations hereunder.
1.8 OFFERING. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 4 hereof, the
offer, issue, and sale of the Notes and Warrants are and will
be exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the
"1933 Act"), and have been registered or qualified (or are
exempt from registration and qualification) under the
registration, permit, or qualification requirements of all
applicable state securities laws.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
1.9 PURCHASE FOR OWN ACCOUNT. The Purchaser represents that it is
acquiring the Note, the Warrant and the Zenascent Common Stock
issuable upon exercise of the Warrant (collectively, the
"SECURITIES") solely for its own account and beneficial
interest for investment and not for sale or with a view to
distribution of the Securities or any part thereof, has no
present intention of selling (in connection with a
distribution or otherwise), granting any participation in, or
otherwise distributing the same, and does not presently have
reason to anticipate a change in such intention.
1.10 INFORMATION AND SOPHISTICATION. The Purchaser acknowledges
that it has received all the information it has requested from
the Company and it considers necessary or appropriate for
deciding whether to acquire the Securities. The Purchaser
represents that it has had an opportunity to ask questions and
receive answers from the Company and Zenascent regarding
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the terms and conditions of the offering of the Securities and
to obtain any additional information necessary to verify the
accuracy of the information given the Purchaser. The Purchaser
further represents that it has such knowledge and experience
in financial and business matters that it is capable of
evaluating the merits and risk of this investment.
1.11 ABILITY TO BEAR ECONOMIC RISK. The Purchaser acknowledges that
investment in the Securities involves a high degree of risk,
and represents that it is able, without materially impairing
its financial condition, to hold the Securities for an
indefinite period of time and to suffer a complete loss of its
investment.
1.12 ACCREDITED INVESTOR STATUS. The Purchaser is an "ACCREDITED
INVESTOR" as such term is defined in Rule 501 under the
Securities Act.
1.13 FURTHER ASSURANCES. The Purchaser agrees and covenants that at
any time and from time to time it will promptly execute and
deliver to the Company such further instruments and documents
and take such further action as the Company may reasonably
require in order to carry out the full intent and purpose of
this Agreement.
MISCELLANEOUS
1.14 BINDING AGREEMENT. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon
any third party any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
1.15 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of New York as applied
to agreements among New York residents, made and to be
performed entirely within the State of New York.
1.16 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
1.17 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
1.18 NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively
given upon personal delivery or upon deposit with the United
States Post Office, postage prepaid, addressed to the Company
at 0 Xxxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000, or to a
Purchaser at [ADDRESS OF PURCHASER], or at such
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other address as such party may designate by ten (10) days
advance written notice to the other party.
1.19 MODIFICATION; WAIVER. No modification or waiver of any
provision of this Agreement or consent to departure therefrom
shall be effective unless in writing and approved by the
Company and the Purchaser.
1.20 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto
constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and no
party shall be liable or bound to any other in any manner by
any representations, warranties, covenants and agreements
except as specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this NOTE AND WARRANT
PURCHASE AGREEMENT as of the date first written above.
COMPANY:
XXXXXX XXXXXXX PROMOTIONS, LTD.
By:
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Name:
Title:
PURCHASER:
[PURCHASER]
By:
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Name:
Title:
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