Exhibit 4.3
WARRANT CERTIFICATE
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
No. A-____ ________ Warrant Shares ("Warrant Number")
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This Warrant Certificate certifies that ____________________________, or
registered assigns, is the registered holder of warrants (the "Warrants") to
purchase ______________________ (______) shares of common stock, subject to
adjustment (the "Common Stock"), $0.01 par value per share, of WINDSOR WOODMONT
BLACK HAWK RESORT CORP., a Colorado corporation (the "Company"). Each Warrant
entitles the holder upon exercise to receive from the Company commencing on the
Warrant Exercise Commencement Date (as defined in the Warrant Agreement [as
defined below]) until 5:00 p.m. New York City Time on March 15, 2010, the number
of fully paid and nonassessable Warrant Shares as set forth in the First Warrant
Agreement dated as of March 14, 2000 (the "Warrant Agreement") by and between
the Company and the Warrant Agent, subject to adjustment as set forth in Section
11 of the Warrant Agreement, at the exercise price (the "Exercise Price") of
$0.01 per share payable pursuant to the provisions of Section 6 of the Warrant
Agreement upon surrender of this Warrant Certificate and payment of the Exercise
Price at the office or agency of the Warrant Agent, but only subject to the
conditions set forth herein and in the Warrant Agreement referred to on the
reverse hereof. The number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement. Subject to the provisions of the Warrant
Agreement, no Warrant may be exercised after 5:00 p.m., New York City Time on
March 15, 2010, and to the extent not exercised by such time such Warrants shall
become void. Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant
Agent, as such term is used in the Warrant Agreement. This Warrant Certificate
shall be governed and construed in accordance with the internal laws of the
State of New York.
Reference is hereby made to the further provisions on the reverse hereof which
provisions shall for all purposes have the same effect as though fully set forth
at this place.
Terms used and not otherwise defined in this Warrant Certificate shall have the
meanings given them in the Warrant Agreement.
This Warrant Certificate shall not be valid unless countersigned by the Warrant
Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with
the internal laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, Windsor Woodmont Black Hawk Resort Corp. has caused this
Warrant Certificate to be signed by its authorized officers and may cause its
corporate seal to be affixed hereunto or imprinted hereon. Dated:
________________
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.
By:________________________________
Name:_________________________
Title:________________________
By:________________________________
Name:_________________________
Title:________________________
Countersigned:
SunTrust Bank, as Warrant Agent
By:___________________________
Authorized Signatory
<PAGE>
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THIS PARAGRAPH. IN
ADDITION, COLORADO GAMING AUTHORITIES MAY LIMIT, RESTRICT OR PROHIBIT THE OFFER,
SALE, PLEDGE OR TRANSFER OF THIS SECURITY OR THE EXERCISE OF THIS SECURITY INTO
COMMON STOCK. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
WARRANT HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT) (a "QIB"), (ii) IT HAS ACQUIRED THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE ACT, (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT (an "IAI")),
OR (iv) IT HAS ACQUIRED THIS SECURITY IN COMPLIANCE WITH CLAUSE (vi) OF THE
NEXT PARAGRAPH;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A UNDER THE ACT, (iii) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (v) TO AN IAI THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE WARRANT AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM WARRANT AGENT) AND AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE ACT, (vi) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY), OR (vii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT.
THE WARRANT AGREEMENT CONTAINS A PROVISION REQUIRING THE WARRANT AGENT TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY AND ALL SECURITIES ISSUED
IN EXCHANGE THEREFORE, IN SUBSTITUTION THEREOF OR UPON CONVERSION THEREOF
IN VIOLATION OF THE FOREGOING.
The Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants expiring March 15, 2010 entitling the holder on exercise to
receive shares of Common Stock, and are issued or to be issued pursuant to the
<PAGE>
Second Warrant Agreement dated as of March 14, 2000 (the "Warrant Agreement"),
duly executed and delivered by the Company to SunTrust Bank, as warrant agent
(the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company.
Warrants may be exercised at any time on or after the Warrant Exercise
Commencement Date and on or before March 15, 2010; provided that holders shall
be able to exercise their Warrants only if a registration statement relating to
the Warrant Shares is then in effect, or the exercise of such Warrants is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and such securities are qualified for sale or exempt
from qualification under the applicable securities laws of the states in which
the various holders of the Warrants or other Persons to whom it is proposed that
the Warrant Shares be issued on exercise of the Warrants reside. In order to
exercise all or any of the Warrants represented by this Warrant Certificate, (i)
in the case of Definitive Warrants, the holder must surrender for exercise this
Warrant Certificate to the Warrant Agent at its corporate trust office set forth
in Section 22 of the Warrant Agreement, (ii) in the case of a book-entry
interest in a Global Warrant, the exercising Agent Member whose name appears on
a securities position listing of the Depositary as the holder of such book-entry
interest must comply with the Depositary's procedures relating to the exercise
of such book-entry interest in such Global Warrant and (iii) in the case of both
Global Warrants and Definitive Warrants, the holder thereof or the Agent Member,
as applicable, must deliver to the Warrant Agent the form of election to
purchase on the reverse hereof duly filled in and signed, which signature shall
be medallion guaranteed by an institution which is a member of a Securities
Transfer Association recognized signature guarantee program, and upon payment to
the Warrant Agent for the account of the Company of the Exercise Price for the
number of Warrant Shares, as adjusted in accordance with the Warrant Agreement,
in respect of which such Warrants are then exercised. No adjustment shall be
made for any dividends on any Common Stock issuable upon exercise of this
Warrant.
The Warrant Agreement provides that upon the occurrence of certain events the
Warrant Number set forth on the face hereof may, subject to certain conditions,
be adjusted. If the Warrant Number is adjusted, the Warrant Agreement provides
that the number of shares of Common Stock issuable upon the exercise of each
Warrant shall be adjusted. No fractions of a share of Common Stock will be
issued upon the exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
The holders of the Warrants shall have the registration rights set forth in the
Warrant Registration Rights Agreement, dated as of March 14, 2000, by and
between the Company and the Company and its subsidiaries.
Warrant Certificates, when surrendered at the office of the Warrant Agent by the
registered holder thereof in person or by legal representative or attorney duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate
at the office of the Warrant Agent a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
<PAGE>
Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder(s)
thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof, of any distribution to the holder(s) hereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary. Neither the Warrants nor this Warrant
Certificate entitles any holder hereof to any rights of a shareholder of the
Company.
<PAGE>
[FORM OF]
ELECTION TO EXERCISE
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive [ ] shares of Common Stock
and herewith tenders payment for such shares to the order of the Company in the
amount of $[ ] in accordance with Section 6 of the Warrant Agreement. The
undersigned requests that a certificate for such shares be registered in the
name of [ ], whose address is [ ] and that such shares be delivered to [ ] whose
address is [ ]. If said number of shares is less than all of the shares of
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered in
the name of [ ], whose address is [ ], and that such Warrant Certificate be
delivered to [ ], whose address is [ ].
Date:_______________
(Signature)
Note: The above signature must correspond
with the name as written upon the
face of this Warrant Certificate in
every particular, without
alteration or enlargement or any
change whatever.
(Signature Guaranteed)
Note: Signature must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Warrant Agent, which requirements
include membership or participation
in the Securities Transfer Agents
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended
Tax Identification or
Social Security Number:_____________________
Address:
<PAGE>
[FORM OF]
ASSIGNMENT
For value received [ ] hereby sells, assigns and transfers unto [ ] the within
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint [ ] attorney, to transfer said
Warrant Certificate on the books of the Company, with full power of substitution
in the premises.
Date:______________________
(Signature)
Note: The above signature must correspond
with the name as written upon the
face of this Warrant Certificate in
every particular, without
alteration or enlargement or any
change whatever.
(Signature Guaranteed)
Note: Signature must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Warrant Agent, which requirements
include membership or participation
in the Securities Transfer Agents
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended
