THE TRANSFERABILITY OF THIS WARRANT IS RESTRICTED AS PROVIDED IN SECTION 3
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED
AS PROVIDED IN SECTION 3
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No.
2009-__
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December
30, 2009
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For
good and valuable consideration, the receipt of which is hereby acknowledged by
SKINNY NUTRITIONAL CORP., a Nevada corporation (the “Company”),
_________________ (the “Holder”), is hereby
granted the right to purchase, at any time from and after the date that this
Warrant is issued as specified above, until 5:00 P.M., New York City time, on
December 30, 2014 (the “Warrant Exercise
Term”), up to _________________________________ fully-paid and
non-assessable shares of the Company's Common Stock, $.001 par value per share
(“Common
Stock”).
l.
Exercise of
Warrant
1.1 During
the Warrant Exercise Term, this Warrant shall be exercisable at a per share
price of $0.07 (the “Exercise Price”),
subject to adjustment as provided in Section 2 hereof, payable in cash or by
certified or official bank check in New York Clearing House funds. Upon
surrender of this warrant certificate with the annexed Exercise Notice duly
executed, together with payment of the Exercise Price for the shares of Common
Stock purchased at the Company’s principal executive offices the registered
Holder of the Warrant shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased (the “Warrant Shares”). The
purchase rights represented by this Warrant are exercisable at the option of the
Holder hereof, in whole or in part (but not as to fractional shares of the
Common Stock) during any period in which this Warrant may be exercised as set
forth above. In the case of the purchase of less than all the shares of Common
Stock purchasable under this Warrant, the Company shall cancel this Warrant upon
the surrender thereof and, upon the written request of the Holder, the Company
shall execute and deliver a new Warrant of like tenor for the balance of the
shares of Common Stock purchasable hereunder.
1.2 The
issuance of certificates for shares of Common Stock upon the exercise of this
Warrant shall be made without charge to the Holder hereof including, without
limitation, any tax which may be payable in respect of the issuance thereof, and
such certificates shall be issued in the name of, or in such names as may be
directed by, the Holder hereof; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of such certificate in a name other than that of
the Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been
paid.
1.3
The Company covenants that it will at all times reserve and keep available out
of its authorized Common Stock, solely for the purpose of issuance upon exercise
of this Warrant as herein provided, such number of shares of Common Stock as
shall then be issuable upon the exercise of this Warrant. The Company
covenants that all shares of Common Stock which shall be so issuable shall be
duly and validly issued and fully-paid and non-assessable.
1.4 Each
exercise of this Warrant by the Holder shall be deemed to have been effected
immediately prior to the close of business on the date upon which all of the
requirements of Section 1 hereof with respect to such exercise shall
have been complied with in full (each such date, an “Exercise
Date”). On the applicable Exercise Date with respect to any
exercise of this Warrant by the Holder, the Company shall be deemed to have
issued to the Holder, and the Holder shall be deemed to have become the holder
of record and legal owner of, the number of Warrant Shares being purchased upon
such exercise of this Warrant, notwithstanding that the stock transfer books of
the Company shall then be closed or that certificates representing such number
of Warrant Shares being purchased shall not then be actually delivered to the
Holder.
1.5 Cashless
Exercise. If at any time during the Warrant Exercise Term
there is no effective Registration Statement registering, or no current
prospectus available for, the resale of the Warrant Shares by the Holder, then
this Warrant may also be exercised at such time by means of a “Cashless
Exercise.” The Holder may effect a Cashless Exercise by surrendering this
Warrant to the Company and noting on the Exercise Notice that the Holder wishes
to effect a Cashless Exercise, upon which the Company shall issue to the Holder
the number of Warrant Shares determined as follows:
X = Y x
(A-B)/A
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where:
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X =
the number of Warrant Shares to be issued to the
Holder;
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Y =
the number of Warrant Shares with respect to which this Warrant is being
exercised;
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A =
the Market Price (as defined in below) as of the Exercise Date;
and
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B =
the Exercise Price.
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As used herein, the term “Market Price” means,
as of a particular date, the average of the closing price for the ten (10)
consecutive trading days occurring immediately prior to (but not including) such
date, as reported in the principal market on which the Company’s Common Stock is
traded. For purposes of Rule 144, it is intended and acknowledged that the
Warrant Shares issued in a Cashless Exercise transaction shall be deemed to have
been acquired by the Holder, and the holding period for the Warrant Shares
required by Rule 144 shall be deemed to have been commenced, on the date this
Warrant was originally issued by the Company.
2.
Adjustments and
Extraordinary Events
2.1
Stock Dividends, Subdivisions,
Reclassifications or Combinations. If the Corporation shall
(A) declare a dividend or make a distribution on its Common Stock in shares of
its Common Stock, (B) subdivide or reclassify the outstanding shares of Common
Stock into a greater number of shares, or (C) combine or reclassify the
outstanding Common Stock into a smaller number of shares, the Exercise Price in
effect at the time of the record date for such dividend or distribution or the
effective date of such subdivision, combination or reclassification shall be
proportionately adjusted. Any adjustment made herein which results in a decrease
(or increase) in the Exercise Price shall also effect a proportional increase
(or decrease) in the number of shares of Common Stock into which this Warrant is
exercisable. Successive adjustments in the Exercise Price shall be made whenever
any event specified above shall occur.
2
2.2 Reorganization, Reclassification,
Merger, Consolidation or Disposition of Assets. In case the Company shall
reorganize its capital, reclassify its capital stock, consolidate or merge with
or into another corporation (where the Company is not the surviving corporation
or where there is a change in or distribution with respect to the Common Stock
of the Company), or sell, transfer or otherwise dispose all or substantially all
of its property, assets or business to another corporation and, pursuant to the
terms of such reorganization, reclassification, merger, consolidation or
disposition of assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property of any
nature whatsoever (including warrants or other subscription or purchase rights)
in addition to or in lieu of common stock of the successor or acquiring
corporation (“Other
Property”), are to be received by or distributed to the holders of Common
Stock of the Company, then the Holder shall have the right thereafter to
receive, upon exercise of this Warrant, the number of shares of common stock of
the successor or acquiring corporation or of the Company, if it is the surviving
corporation, and Other Property receivable upon or as a result of such
reorganization, reclassification, merger, consolidation or disposition of assets
by a Holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets (“Extraordinary
Transaction”), the successor or acquiring corporation (if other than the
Company) shall expressly assume the due and punctual observance and performance
of each and every covenant and condition of this Warrant to be performed and
observed by the Company and all the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as determined in
good faith by resolution of the Board of Directors of the Company) in order to
provide for adjustments of Warrant Shares for which this Warrant is exercisable
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section
2.2. As soon as commercially practicable following the
Extraordinary Transaction, the successor or acquiring corporation (if other than
the Company), shall deliver to Holder a new warrant in repacement of this
Warrant consistent with the provisions referenced in the immediately preceding
sentence against receipt by such successor or acquiring corporation of the
original of this Warrant. For purposes of this Section 2.2, “common
stock of the successor or acquiring corporation” shall include stock of such
corporation of any class which is not preferred as to dividends or assets over
any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this Section 2.2 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
2.3 Notice of Adjustment.
Whenever the number of Warrant Shares or number or kind of securities or other
property purchasable upon the exercise of this Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall give prior written notice
thereof to the Holder of at least 15 days prior to the date on which the Company
closes its books or takes a record for determining the particular event, which
notice shall state the number of Warrant Shares (and other securities or
property) purchasable upon the exercise of this Warrant and the Exercise Price
of such Warrant Shares (and other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made.
3
3. Restrictions on
Transfer
The Holder acknowledges that he has
been advised by the Company that this Warrant and the Warrant Shares issuable
upon exercise thereof (collectively the “Securities”) have not
been registered under the Securities Act of 1933, as amended (the “Securities Act”),
that the Warrant is being issued, and the shares issuable upon exercise of the
Warrant will be issued, on the basis of the statutory exemption provided by
section 4(2) of the Securities Act relating to transactions by an issuer not
involving any public offering, and that the Company's reliance upon this
statutory exemption is based in part upon the representations made by the Holder
contained herein. The Holder acknowledges that he has been informed
by the Company of, or is otherwise familiar with, the nature of the limitations
imposed by the Securities Act and the rules and regulations thereunder on the
transfer of securities. In particular, the Holder agrees that no sale,
assignment or transfer of the Securities shall be valid or effective, and the
Company shall not be required to give any effect to any such sale, assignment or
transfer, unless (i) the sale, assignment or transfer of the Securities is
registered under the Securities Act, and the Company has no obligations or
intention to so register the Securities except as may otherwise be provided
herein, or (ii) the Securities are sold, assigned or transferred in accordance
with all the requirements and limitations of Rule 144 under the Securities Act
or such sale, assignment, or transfer is otherwise exempt from registration
under the Securities Act. The Holder represents and warrants that he has
acquired this Warrant and will acquire the Securities for his own account for
investment and not with a view to the sale or distribution thereof or the
granting of any participation therein, and that he has no present intention of
distributing or selling to others any of such interest or granting any
participation therein. The Holder acknowledges that the Warrant and Warrant
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or registered or qualified under any
applicable state securities or “blue-sky” laws or is exempt from registration
and/or qualification. The Holder has no need for liquidity in its investment in
the Company, and is able to bear the economic risk of such investment for an
indefinite period and to afford a complete loss thereof. The Holder is an
“accredited investor” as such term is defined in Rule 501 (the provisions of
which are known to the Holder) promulgated under the Act.
The
Holder acknowledges that the securities shall bear the following
legend:
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“These
securities have not been registered under the Securities Act of
1933. Such securities may not be sold or offered for sale,
transferred, hypothecated or otherwise assigned in the absence of an
effective registration statement with respect thereto under such Act or an
opinion of counsel to the Company that an exemption from registration for
such sale, offer, transfer, hypothecation or other assignment is available
under such Act.”
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4.
Redemption.
4.1 The
Company may, subject to the conditions set forth herein, redeem some or all of
the Warrants then outstanding upon not less than thirty (30) days nor more than
sixty (60) days prior written notice to the Warrant Holders at any time, provided: (i) this
Warrant has been issued by the Company; (ii) the closing bid price of the
Company's Common Stock for each of the twenty (20) consecutive trading days
prior to the date of the notice of redemption is at least $1.50, as
proportionately adjusted to reflect any stock splits, stock dividends,
combination of shares or like events and (iii) all of the Warrant Shares have
been registered for resale and continue to be covered by an effective
and current registration statement with the Securities and Exchange
Commission. Notice will be effective upon mailing and the time of
mailing is the “Effective Date of the Notice”. The Notice will state a
redemption date not less than thirty (30) days nor more than sixty (60) days
from the Effective Date of the Notice (the “Redemption Date”). No
Notice shall be mailed unless all funds necessary to pay for redemption of the
Warrants to be redeemed shall have first been set aside by the Company for the
benefit of the Warrant Holders so as to be and continue to be available
therefor. The redemption price to be paid to the Warrant Holders will be $.10
for each share of Common Stock of the Company to which the Warrant Holder would
then be entitled upon exercise of the Warrant being redeemed, as adjusted from
time to time as provided herein (the “Redemption Price”).
The Warrant Holders may exercise their Warrants between the Effective Date of
the Notice and 5:00 p.m. Eastern Time on the business day immediately prior to
the Redemption Date, such exercise being effective if done in accordance with
Section 1 hereof, and if the Warrant Certificate, with form of election to
purchase duly executed and the Warrant Price, as applicable for such Warrant
subject to redemption for each share of Common Stock to be purchased is actually
received by the Company at its principal offices prior to 5:00 p.m. Eastern Time
on the business day immediately prior to the Redemption
Date.
4
4.2 If
any Warrant Holder does not wish to exercise any Warrant being redeemed, he
should mail such Warrant to the Company at its principal offices after receiving
the Notice of Redemption required by this Section 4. If such Notice of
Redemption shall have been so mailed, and if on or before the Effective Date of
the Notice all funds necessary to pay for redemption of the Warrants subject to
redemption shall have been set aside by the Company for the benefit of such
Warrant Holders, then, on and after said Redemption Date, notwithstanding that
any Warrant subject to redemption shall not have been surrendered for
redemption, the obligation evidenced by all Warrants not surrendered for
redemption or effectively exercised shall be deemed no longer outstanding, and
all rights with respect thereto shall forthwith cease and terminate, except only
the right of the holder of each Warrant subject to redemption to receive the
Redemption Price for each share of Common Stock to which he would be entitled if
he exercised the Warrant upon receiving notice of redemption of the Warrant
subject to redemption held by him.
5. Exchange and Replacement of
Warrant Certificates.
This Warrant Certificate is
exchangeable without expense, upon the surrender hereof by the registered Holder
at the principal executive office of the Company, for a new Warrant Certificate
of like tenor and date representing in the aggregate the right to purchase the
same number of Warrant Shares in such denominations as shall be designated by
the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it, and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Warrants, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu thereof and any such lost, stolen, destroyed
or mutilated warrant shall thereupon become void.
6. Elimination of Fractional
Interests.
The Company shall not be required to
issue certificates representing fractions of the shares of Common Stock and
shall not be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up or down to the nearest whole
number of shares of Common Stock.
7. Rights of Warrant
Holders.
Nothing contained in this Agreement
shall be construed as conferring upon the Holder any rights whatsoever as a
stockholder of the Company, either at law or in equity, including without
limitation, or Holders the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors the right to receive dividends or any other
matter.
5
8. Miscellaneous
8.1 All
the covenants and agreements made by the Company in this Warrant shall bind its
successors and assigns. This Warrant shall be for the sole and exclusive benefit
of the Holder and nothing in this Warrant shall be construed to confer upon any
person other than the Holder any legal or equitable right, remedy or claim
hereunder.
8.2 No
recourse shall be had for any claim based hereon or otherwise in any manner in
respect hereof, against any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor corporation,
whether by virtue of any constitutional provision or statute or rule of law, or
by the enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
8.3 No
course of dealing between the Company and the Holder hereof shall operate as a
waiver of any right of any Holder hereof, and no delay on the part of the Holder
in exercising any right hereunder shall so operate.
8.4 This
Warrant may be amended only by a written instrument executed by the Company and
the Holder hereof. Any amendment shall be endorsed upon this Warrant,
and all future Holders shall be bound thereby.
8.5 All
communications provided for herein shall be sent, except as may be otherwise
specifically provided, by registered or certified mail: if to the
Holder of this Warrant, to the address shown on the books of the Company; and if
to the Company, to Three Bala Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000,
attention: Office of the President, or to such other address as the Company may
advise the Holder of this Warrant in writing. Notices shall be deemed
given when mailed.
8.6 The
provisions of this Warrant shall in all respects be constructed according to,
and the rights and liabilities of the parties hereto shall in all respects be
governed by, the laws of the Commonwealth of Pennsylvania. This Warrant shall be
deemed a contract made under the laws of the Commonwealth of Pennsylvania and
the validity of this Warrant and all rights and liabilities hereunder shall be
determined under the laws of said State.
8.7 The
headings of the Sections of this Warrant are inserted for convenience only and
shall not be deemed to constitute a part of this Warrant.
IN
WITNESS WHEREOF, SKINNY NUTRITIONAL CORP. has caused this Warrant to be executed
in its corporate name by its officer, and its seal to be affixed
hereto.
Dated: December
30, 0000
Xxxx Xxxxxx, Xxxxxxxxxxxx
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By:
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Name:
|
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Title:
|
|||
6
EXERCISE
NOTICE
|
TO:
|
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Three
Xxxx Xxxxx Xxxx, Xxxxx 000
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|
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Xxxx
Xxxxxx, XX 00000
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The undersigned Holder hereby
irrevocably elects to exercise the right to purchase __________________ shares
of Common Stock covered by this Warrant according to the conditions hereof and
herewith makes full payment of the Exercise Price of such shares.
The undersigned, by marking the box
following this sentence, indicates his or her intention to exercise this Warrant
on a cashless basis in accordance with the terms of this
Warrant: €
Kindly deliver to the undersigned a
certificate representing the Shares.
INSTRUCTIONS
FOR DELIVERY
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Name:
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(please
typewrite or print in block
letters)
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Address:
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Tax
I.D. No. or Social Security No.:
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Dated:
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Signature
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STATE
OF
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)
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COUNTY OF
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)
ss:
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On this __ day of ___________, before
me personally came ________, to me known, who being by me duly sworn, did depose
and say that he resides at __________________, that he is the holder of the
foregoing instrument and that he executed such instrument and duly acknowledged
to me that he executed the same.
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Notary
Public
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7
[FORM OF
ASSIGNMENT]
(To be
executed by the registered holder if such holder
desires
to transfer the Warrant Certificate.)
FOR VALUE
RECEIVED, the undersigned Holder of this Warrant hereby sells, assigns and
transfers the foregoing Warrant and all rights evidenced thereby to
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Name:
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(Please
Print)
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Address:
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(Please
Print)
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Tax
ID No.:
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and does
hereby irrevocably constitute and appoint __________________,
Attorney, to transfer the within Warrant Certificate on the books of SKINNY
NUTRITIONAL CORP., with full power of substitution.
| Dated: |
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Signature:
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(Signature
must conform in all respects to name of holder as specified on the face of
the Warrant
Certificate)
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(Insert
Social Security or Other
Identifying
Number of Assignee)
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STATE OF
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)
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COUNTY OF
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)
ss:
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On this __ day of ___________, before
me personally came ________, to me known, who being by me duly sworn, did depose
and say that he resides at __________________, that he is the holder of the
foregoing instrument and that he executed such instrument and duly acknowledged
to me that he executed the same.
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Notary
Public
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8
