Contract
Exhibit 4.3
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE ON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER SECURITIES LAWS (THE “ACTS”). NEITHER THIS
WARRANT NOR THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER MAY BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THIS WARRANT OR COMMON STOCK
PURCHASABLE HEREUNDER, AS APPLICABLE, UNDER THE ACTS, OR (B) AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACTS.
VOID AFTER 5:00 P.M. NEW YORK TIME, _________, 2025
Issue
Date: __________, 2019
1. Basic Terms. This Warrant
Agreement (the “Warrant”) certifies that, for value
received, the registered holder specified below or its registered
assigns (“Holder”) is the owner of a warrant of
Youngevity International, Inc., a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 (the “Corporation”), subject to
adjustments as provided herein, to purchase One Million Five
Hundred Thousand (1,500,000) shares of the Common Stock, $.001 par
value, of the Corporation (the “Common Stock”) from the
Corporation at the price per share shown below (the “Exercise
Price”).
Holder:
Xxxxxx Xxxxxxx
Exercise Price per
share:
$10.00
Except
as specifically provided otherwise, all references in this Warrant
to the Exercise Price and the number of shares of Common Stock
purchasable hereunder shall be to the Exercise Price and number of
shares after any adjustments are made thereto pursuant to this
Warrant.
Capitalized
terms used and not defined herein shall have the meanings set forth
in that certain Asset and Equity Purchase Agreement, dated February
__, 2019, by and among the Corporation, Khrysos Industries, Inc.,
Khrysos Global, Inc., Xxxxx Xxxxxxx and Xxxxxx
Xxxxxxx.
2. Corporation’s
Representations/Covenants. The Corporation represents and
covenants that the shares of Common Stock issuable upon the
exercise of this Warrant shall at delivery be fully paid and
non-assessable and free from taxes, liens, encumbrances and charges
with respect to their purchase. The Corporation shall take any
necessary actions to assure that the par value per share of the
Common Stock is at all times equal to or less than the then current
Exercise Price per share of Common Stock issuable pursuant to this
Warrant. The Corporation shall at all times reserve and hold
available sufficient shares of Common Stock to satisfy all
conversion and purchase rights of outstanding convertible
securities, options and warrants of the Corporation, including this
Warrant.
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3. Method of Exercise; Fractional
Shares.
(a) This Warrant is
exercisable at the option of the Holder (with respect to any vested
portion) at any time by surrendering this Warrant, on any business
day during the period (the “Exercise Period”) beginning
the business day after the issue date of this Warrant specified
above and ending at 5:00 p.m. (New York time) six (6) years after
the issue date. To exercise this Warrant, the Holder shall
surrender this Warrant at the principal office of the Corporation
or that of the duly authorized and acting transfer agent for its
Common Stock, together with the executed exercise form
(substantially in the form of that attached hereto) and together
with payment for the Common Stock purchased under this Warrant. The
principal office of the Corporation is located at the address
specified in Section 1 of this Warrant; provided, however, that the Corporation
may change its principal office upon notice to the Holder. Payment
shall be made by check payable to the order of the Corporation or
by wire transfer. This Warrant is not exercisable with respect to a
fraction of a share of Common Stock. In lieu of issuing a fraction
of a share remaining after exercise of this Warrant as to all full
shares covered by this Warrant, the Corporation shall either at its
option (a) pay for the fractional share cash equal to the same
fraction at the fair market price for such share; or (b) issue
scrip for the fraction in the registered or bearer form which shall
entitle the Holder to receive a certificate for a full share of
Common Stock on surrender of scrip aggregating a full
share.
(b) This Warrant shall
vest as follows: (i) 500,000 shares of Common Stock will vest upon
the Corporation’s subsidiary, Khrysos Industries, Inc.
(“KII”) achieving from the Business $10,000,000 in
cumulative net income during any of the years ended December 31,
2019, 2020, 2021, 2022, 2023 or 2024; (ii) 500,000 shares of Common
Stock will vest upon KII achieving from the Business $30,000,000 in
cumulative net income during any of the years ended December 31,
2019, 2020, 2021, 2022, 2023 or 2024; and (iii) 500,000 shares of
Common Stock will vest upon KII achieving from the Business
$60,000,000 in cumulative net income during any of the years ended
December 31, 2019, 2020, 2021, 2022, 2023 or 2024. The Warrants
will vest upon the attainment of the foregoing sales objectives
only once for each level attained, and such level must be attained
within six (6) years of the Issue Date of this
Warrant.
(c) If an effective
registration statement is not then in effect for the shares of
Common Stock issuable hereunder, in lieu of cash exercising this
Warrant, the Holder may elect to receive Common Stock equal to the
value of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the principal office of the
Corporation together with notice of such election, in which event
the Corporation shall issue to the Holder a number of shares of
Common Stock computed using the following formula:
Y (A - B)
X
=
A
Where:
X
-- The
number of shares of Common Stock to be issued to the Holder under
this Section 3(b).
Y
-- The
number of shares of Common Stock purchasable under this Warrant (at
the date of such calculation).
A
-- The
fair market value of a share of Common Stock on the business day
immediately preceding the date of exercise.
B
-- The
Exercise Price (as adjusted to the date of such
calculations).
For
purposes of this Section 3(b), the fair market value of a share of
Common Stock shall mean the average of the closing price of the
Common Stock (or equivalent shares of capital stock for which this
Warrant is exercisable (“Capital Stock”)
underlying the Common Stock) quoted on NASDAQ or other primary
market in which the Common Stock (or equivalent shares of Capital
Stock underlying the Common Stock) are traded or the closing price
quoted on any exchange or electronic securities market on which the
Common Stock (or equivalent shares of Capital Stock underlying the
Common Stock) are listed, whichever is applicable, as published in
The Wall Street Journal for the thirty (30) trading days prior to
the date of determination of fair market value (or such shorter
period of time during which such Common Stock were traded
over-the-counter or on such exchange).
4. Protection Against Dilution. If
the Corporation, with respect to the Common Stock, (1) pays a
dividend or makes a distribution on shares of Common Stock that is
paid in shares of Common Stock or in securities convertible into or
exchangeable for Common Stock (in which latter event the number of
shares of Common Stock initially issuable upon the conversion or
exchange of such securities shall be deemed to have been
distributed), (2) subdivides outstanding shares of Common Stock,
(3) combines outstanding shares of Common Stock into a smaller
number of shares, or (4) issues by reclassification of Common Stock
any shares of capital stock of the Corporation, the number of
shares as to which this Warrant is exercisable as of the date of
such event and the Exercise Price in effect immediately prior
thereto shall be adjusted so that each Holder thereafter shall be
entitled to receive the number and kind of shares of Common Stock
or other capital stock of the Corporation that it would have owned
or been entitled to receive in respect of this Warrant immediately
after the happening of any of the events described above had this
Warrant been converted immediately prior to the happening of that
event; provided that the aggregate purchase price payable for the
total numbers of shares of Common Stock purchasable under this
Warrant shall remain the same. An adjustment made in accordance
with this section shall become effective immediately after the
record date, in the case of a dividend, and shall become effective
immediately after the effective date, in the case of a subdivision,
combination, or reclassification. If, as a result of an adjustment
made in accordance with this Section 4, the Holder becomes entitled
to receive shares of two or more classes of capital stock or shares
of Common Stock and other capital stock of the Corporation, the
board of directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted Exercise Rate between or
among shares of such classes of capital stock or shares of Common
Stock and other capital stock.
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5. Adjustment for Reorganization,
Consolidation, Merger. In the event of any consolidation or
merger to which the Corporation is a party other than a
consolidation or merger in which the Corporation is the continuing
corporation, or the sale or conveyance to another corporation of
the property of the Corporation as an entirety or substantially as
an entirety or any statutory exchange of securities with another
corporation (including any exchange effected in connection with a
merger of a third corporation into the Corporation) (each such
transaction referred to herein as “Reorganization”), no
adjustment of exercise rights or the Exercise Price shall be made;
provided,
however, the Holder
shall thereupon be entitled to receive if the Holder chooses to
exercise the Warrant within ten days of the notice of the
Reorganization and provision shall be made therefor in any
agreement relating to a Reorganization, the kind and number of
securities or property (including cash) of the corporation
resulting from such consolidation or surviving such merger or to
which such properties and assets shall have been sold or otherwise
transferred or with whom securities have been exchanged, which the
Holder would have owned or been entitled to receive as a result of
such Reorganization had this Warrant been exercised immediately
prior to such Reorganization (and assuming the Holder failed to
make an election, if any was available, as to the kind or amount of
securities, property or cash receivable by reason of such
Reorganization; provided that if the kind or amount of securities,
property or cash receivable upon such Reorganization is not the
same for each share of Common Stock in respect of which such rights
of election shall not have been exercised (“non electing
share”) then for the purpose of this section the kind and
amount of securities, property or cash receivable upon such
Reorganization for each non electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of the
non electing shares). In any case, appropriate adjustment shall be
made in the application of the provisions herein set forth with
respect to the rights and interests thereafter of the Holder, to
the end that the provisions set forth herein (including the
specified changes and other adjustments to the conversion rate)
shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares, other securities or property thereafter
receivable upon exercise of this Warrant. The provisions of this
section similarly apply to successive Reorganizations.
6. Notice of Adjustment. On the
happening of an event requiring an adjustment of the Exercise Price
or the shares purchasable under this Warrant, the Corporation
shall, within thirty (30) business days, give written notice to the
Holder stating the adjusted Exercise Price and the adjusted number
and kind of securities or other property purchasable under this
Warrant resulting from the event and setting forth in reasonable
detail the method of calculation and the facts upon which the
calculation is based.
7. Dissolution, Liquidation. In
case of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation (other than in connection with
reorganization, consolidation, merger, or other transaction covered
by paragraph 5 above) is at any time proposed; the Corporation
shall give at least thirty days prior written notice to the Holder.
Such notice shall contain: (a) the date on which the transaction is
to take place; (b) the record date (which shall be at least thirty
(30) days after the giving of the notice) as of which holders of
Common Stock will be entitled to receive distributions as a result
of the transaction; (c) a brief description of the transaction, (d)
a brief description of the distributions to be made to holders of
Common Stock as a result of the transaction; and (e) an estimate of
the fair value of the distributions. On the date of the
transaction, if it actually occurs, this Warrant and all rights
under this Warrant shall terminate.
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8. Rights of Holder.
Notwithstanding anything to the contrary contained herein, if the
Corporation terminates that certain Consulting Agreement, dated
_____, 2019, with Holder for cause, or the Holder terminates the
Consulting Agreement without cause, the rights granted to Holder
hereunder and this Warrant shall thereupon concurrently terminate
without further action by the Corporation. The Corporation shall
deliver to the Holder all notices and other information provided to
its holders of shares of Common Stock or other securities which may
be issuable hereunder concurrently with the delivery of such
information to the holders. This Warrant does not entitle the
Holder to any voting rights or, except for the foregoing notice
provisions, any other rights as a shareholder of the Corporation.
No dividends are payable or will accrue on this Warrant or the
shares of Common Stock purchasable under this Warrant until, and
except to the extent that, this Warrant is exercised. Upon the
surrender of this Warrant and payment of the Exercise Price as
provided above, the person or entity entitled to receive the shares
of Common Stock issuable upon such exercise shall be treated for
all purposes as the record holder of such shares as of the close of
business on the date of the surrender of this Warrant for exercise
as provided above. Upon the exercise of this Warrant, the Holder
shall have all of the rights of a shareholder in the
Corporation.
9. Exchange for Other
Denominations. This Warrant is exchangeable, on its
surrender by the Holder to the Corporation, for a new Warrant of
like tenor and date representing in the aggregate the right to
purchase the balance of the number of shares purchasable under this
Warrant in denominations and subject to restrictions on transfer
contained herein, in the names designated by the Holder at the time
of surrender.
10. Substitution. Upon receipt by
the Corporation of evidence satisfactory (in the exercise of
reasonable discretion) to it of the ownership of and the loss,
theft or destruction or mutilation of the Warrant, and (in the case
or loss, theft or destruction) of indemnity satisfactory (in the
exercise of reasonable discretion) to it, and (in the case of
mutilation) upon the surrender and cancellation thereof, the
Corporation will issue and deliver, in lieu thereof, a new Warrant
of like tenor.
11. Restrictions on Transfer.
Neither this Warrant nor the shares of Common Stock issuable on
exercise of this Warrant have been registered under the Securities
Act or any other securities laws (the “Acts”). Neither
this Warrant nor the shares of Common Stock purchasable hereunder
may be sold, transferred, pledged or hypothecated in the absence of
(a) an effective registration statement for this Warrant or Common
Stock purchasable hereunder, as applicable, under the Acts, or (b)
an opinion of counsel reasonably satisfactory to the Corporation
that registration is not required under such Acts. If the Holder
seeks an opinion as to transfer without registration from
Holder’s counsel, the Corporation shall provide such factual
information to Holder’s counsel as Holder’s counsel
reasonably requests for the purpose of rendering such opinion. Each
certificate evidencing shares of Common Stock purchased hereunder
will bear a legend describing the restrictions on transfer
contained in this paragraph unless, in the opinion of counsel
reasonably acceptable to the Corporation, the shares need no longer
to be subject to the transfer restrictions.
12. Transfer. Except as otherwise
provided in this Warrant, this Warrant is transferable only on the
books of the Corporation by the Holder in person or by attorney, on
surrender of this Warrant, properly endorsed.
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13. Recognition of Holder. Prior to
due presentment for registration of transfer of this Warrant, the
Corporation shall treat the Holder as the person exclusively
entitled to receive notices and otherwise to exercise rights under
this Warrant. All notices required or permitted to be given to the
Holder shall be in writing and shall be given by first class mail,
postage prepaid, addressed to the Holder at the address of the
Holder appearing in the records of the Corporation.
14. Payment of Taxes. The
Corporation shall pay all taxes and other governmental charges,
other than applicable income taxes, that may be imposed with
respect to the issuance of shares of Common Stock pursuant to the
exercise of this Warrant.
15. Headings. The headings in this
Warrant are for purposes of convenience in reference only, shall
not be deemed to constitute a part of this Warrant and shall not
affect the meaning or construction of any of the provisions of this
Warrant.
16. Miscellaneous. This Warrant may
not be changed, waived, discharged or terminated except by an
instrument in writing signed by the Corporation and the Holder.
This Warrant shall inure to the benefit of and shall be binding
upon the successors and assigns of the Corporation. Under no
circumstances may this Warrant be assigned by the
Holder.
17. Governing Law. This Warrant
shall be governed by and construed in accordance with the laws of
the State of Delaware without giving effect to its principles
governing conflicts of law.
18. Holder’s Exercise
Limitations. The Corporation shall not effect any exercise
of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, to the extent that after giving effect
to issuance of the shares of Common Stock issuable upon exercise of
this Warrant as set forth on the applicable Notice of Exercise, the
Holder (together with the Holder’s affiliates, and any other
persons acting as a group together with the Holder or any of the
Holder’s affiliates), would beneficially own in excess of the
Beneficial Ownership Limitation, as defined below. For purposes of
the foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its affiliates shall include
the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which such determination is being made, but
shall exclude the number of shares of Common Stock which would be
issuable upon (i) exercise of the remaining, non-exercised portion
of this Warrant beneficially owned by the Holder or any of its
affiliates and (ii) exercise or conversion of the unexercised or
non-converted portion of any other securities of the Corporation
(including without limitation any other Common Stock Equivalents
securities convertible into shares of Common Stock) subject to a
limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its
affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 18, beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act, it
being acknowledged by the Holder that the Corporation is not
representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely
responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this
paragraph applies, the determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder
together with any affiliates) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and
the submission of a Notice of Exercise shall be deemed to be the
Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder together with
any affiliates) and of which portion of this Warrant is
exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Corporation shall have no obligation to verify
or confirm the accuracy of such determination.
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For
purposes of this paragraph, in determining the number of
outstanding shares of Common Stock, a Holder may rely on the number
of outstanding shares of Common Stock as reflected in (A) the
Corporation’s most recent periodic or annual report filed
with the Securities and Exchange Commission, as the case may be,
(B) a more recent public announcement by the Corporation or (C) a
more recent written notice by the Corporation or its transfer agent
setting forth the number of shares of Common Stock outstanding. The
number of outstanding shares of Common Stock shall further be
determined after giving effect to the conversion or exercise of
securities of the Corporation, including this Warrant, by the
Holder or its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 9.99% of the
number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock issuable
upon exercise of this Warrant. Upon no fewer than 61 days’
prior notice to the Corporation, a Holder may increase or decrease
the Beneficial Ownership Limitation provisions of this paragraph,
provided that the Beneficial Ownership Limitation may in no event
exceed 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this paragraph shall continue to
apply. Any such increase or decrease will not be effective until
the 61st day after such notice is delivered to the Corporation and
shall only apply to such Holder and no other Holder. The
limitations contained in this paragraph shall apply to a successor
Holder of this Warrant.
By:
____________________________
Name:
Xxxxx Xxxxxxx
Title:
President and Chief Financial Officer
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Form of
Transfer
(To be
executed by the Holder to transfer the Warrant)
For
value received the undersigned registered holder of the attached
Warrant hereby sells, assigns, and transfers the Warrant to the
Assignee(s) named below:
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Names
of Assignee
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Address
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Taxpayer
ID No.
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Number
of Shares subject to transferred Warrant
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The
undersigned registered holder further irrevocably appoints
____________________ _______________________________ attorney (with
full power of substitution) to transfer this Warrant as aforesaid
on the books of the Corporation.
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Date:
______________________________
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___________________________________
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Signature
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Exercise Form
(To be
executed by the Holder to purchase Common Stock pursuant to the
Warrant)
The
undersigned holder of the attached Warrant hereby irrevocably
elects to exercise purchase rights represented by such Warrant for,
and to purchase, ___________ shares of Common Stock of Youngevity
International, Inc., a Delaware corporation, for the cash payment
for those shares.
The
undersigned requests that (1) a certificate for the shares be
issued in the name of the undersigned and (2) if the number of
shares with respect to which the undersigned holder has exercised
purchase rights is not all of the shares purchasable under this
Warrant, that a new Warrant of like tenor for the balance of the
remaining shares purchasable under this Warrant be
issued.
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Date:
______________________________
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___________________________________
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Signature
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