ChromaDex Corporation and _____________, As Warrant Agent Form of Debt Securities Warrant Agreement Dated As Of __________ ChromaDex Corporation Form of Debt Securities Warrant Agreement
Exhibit
4.14
ChromaDex Corporation
and
Form of Debt Securities
Dated As Of __________
ChromaDex Corporation Form of
Debt Securities Warrant Agreement
This Debt Securities
Warrant Agreement (this “Agreement”),
dated as of [●], between ChromaDex
Corporation, a Delaware corporation (the “Company”), and
[●], a [corporation] [national banking association] organized
and existing under the laws of [●] and having a corporate
trust office in [●], as warrant agent (the
“Warrant
Agent”).
WHEREAS, the Company has
entered into an indenture dated as of [●] (the “Indenture”),
with [●], as trustee
(such trustee, and any successors to such trustee, herein called
the “Trustee”),
providing for the issuance from time to time of its debt
securities, to be issued in one or more series as provided in the
Indenture (the “Debt
Securities”);
Whereas, the
Company proposes to sell [If Warrants
are sold with other securities —[title of such other securities being
offered] (the “Other
Securities”) with]
warrant certificates evidencing one or more warrants (the
“Warrants”
or, individually, a “Warrant”)
representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the “Warrant
Debt Securities”),
such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the “Warrant
Certificates”;
and
Whereas, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of
the Warrant Certificates and the terms and conditions on which they
may be issued, registered, transferred, exchanged, exercised and
replaced.
Now Therefore,
in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants
alone — Upon
issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other
Securities and Warrants — Warrant Certificates will be issued
in connection with the issuance of the Other Securities but shall
be separately transferable and each Warrant Certificate shall
evidence one or more Warrants.] Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained
herein and therein, to purchase one Warrant Debt Security.
[If Other
Securities and Warrants — Warrant Certificates will be issued
with the Other Securities and each Warrant Certificate will
evidence [●] Warrants for
each [$[●] principal
amount] [[●] shares] of
Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the
Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case
any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease
to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant
Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
The
term “holder” or
“holder
of a Warrant Certificate” as used herein shall mean
any person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent
for that purpose.
1.3 Issuance
of
Warrant Certificates.
Warrant Certificates evidencing the right to purchase Warrant Debt
Securities may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign
such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
1
ARTICLE 2
WARRANT PRICE,
DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each
Warrant shall, subject to the terms of this Agreement and the
applicable Warrant Certificate, entitle the holder thereof to
purchase the principal amount of Warrant Debt Securities specified
in the applicable Warrant Certificate at an exercise price of
[●]% of the principal
amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued
interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no
interest shall have been paid on the Warrant Debt Securities, from
the date of their initial issuance.] [The original issue discount
($[●] for each $1,000
principal amount of Warrant Debt Securities) will be amortized at a
[●]% annual rate,
computed on a[n] [semi-] annual basis [using a 360-day year
consisting of twelve 30-day months].] Such purchase price for the
Warrant Debt Securities is referred to in this Agreement as the
“Warrant
Price.
2.2 Duration
of
Warrants. Each Warrant may be exercised in whole or in part
at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on
[●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed
to their addresses as set forth in the record books of the Warrant
Agent (the “Expiration
Date”). Each Warrant not exercised at or before
[●] p.m., [City] time, on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall
cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised
to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse
side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by
bank wire transfer in immediately available funds] the Warrant
Price for each Warrant Debt Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate
trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of
the Warrant Certificate with the form of election to purchase
Warrant Debt Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is
exercised; provided, however, that if, at the date of receipt of
such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Debt Securities purchasable upon
the exercise of such Warrants shall be closed, no such receipt of
such Warrant Certificates and no such payment of such Warrant Price
shall be effective to constitute the person so designated to be
named as the holder of record of such Warrant Debt Securities on
such date, but shall be effective to constitute such person as the
holder of record of such Warrant Debt Securities for all purposes
at the opening of business on the next succeeding day on which the
transfer books for the Warrant Debt Securities purchasable upon the
exercise of such Warrants shall be opened, and the certificates for
the Warrant Debt Securities in respect of which such Warrants are
then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened,
and until such date the Company shall be under no duty to deliver
any certificate for such Warrant Debt Securities. The Warrant Agent
shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a
payment for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Debt
Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants for the remaining Warrant Debt Securities
after such exercise, and (iv) such other information as the Company
or the Trustee shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company
shall issue pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant the Warrant Debt Securities to which such
holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder. If fewer than all
of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Debt Securities,
and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Debt
Securities until such tax or other charge shall have been paid or
it has been established to the Company’s satisfaction that no
such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and
the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Debt
Securities, a number of shares sufficient to provide for the
exercise of the Warrants.
2
ARTICLE
3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1 No
Rights as Holder of Warrant
Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant
Certificate or Warrant evidenced thereby shall entitle the holder
thereof to any of the rights of a holder of Warrant Debt
Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants
in the Indenture.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of
Warrant Debt Securities. Upon the issuance of any new Warrant
Certificate under this Section 3.2, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section 3.2 in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits
of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section 3.2 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder
of
Warrant Certificate May Enforce Rights. Notwithstanding any
of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, , the
Trustee, the holder of any Warrant Debt Securities or the holder of
any other Warrant Certificate, may, in such holder’s own
behalf and for such holder’s own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, such
holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such
holder’s Warrant Certificates and in this
Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share
exchange, merger or similar transaction of the Company with or into
another person or entity (other than a share exchange, merger or
similar transaction in which the Company is the acquiring or
surviving corporation) or (b) the sale, exchange, lease, transfer
or other disposition of all or substantially all of the properties
and assets of the Company as an entirety (in any such case, a
“Reorganization
Event”), then, as
a condition of such Reorganization Event, lawful provisions shall
be made, and duly executed documents evidencing the same from the
Company’s successor shall
be delivered to the holders of the Warrants, so that such successor
shall succeed to and be substituted for the Company, and assume all
the Company’s obligations
under, this Agreement and the Warrants. The Company shall thereupon
be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming entity thereupon may cause
to be signed, and may issue either in its own name or in the name
of the Company, any or all of the Warrants issuable hereunder which
heretofore shall not have been signed by the Company, and may
execute and deliver securities in its own name, in fulfillment of
its obligations to deliver Warrant Debt Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not
in substance) may be made in the Warrants thereafter to be issued
as may be appropriate. The Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such
Reorganization Event complies with the provisions of this Section
3.4.
3.5 Notice
to Warrantholders. In case
the Company shall (a) effect any Reorganization Event or (b) make
any distribution on or in respect of the [title of Warrant Debt
Securities] in connection with the dissolution, liquidation or
winding up of the Company, then the Company shall mail to each
holder of Warrants at such holder’s address as it shall appear on the
books of the Warrant Agent, at least ten days prior to the
applicable date hereinafter specified, a notice stating the date on
which such Reorganization Event, dissolution, liquidation or
winding up is expected to become effective, and the date as of
which it is expected that holders of [title of Warrant Debt
Securities] of record shall be entitled to exchange their shares of
[title of Warrant Debt Securities] for securities or other property
deliverable upon such Reorganization Event, dissolution,
liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect any such
transaction.
3
ARTICLE 4
EXCHANGE AND
TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at
the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence Warrants for the same
aggregate principal amount of Warrant Debt Securities as the
Warrant Certificates so surrendered. The Warrant Agent shall keep,
at its corporate trust office, books in which, subject to such
reasonable regulations as it may prescribe, it shall register
Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed
in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange
or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Debt Security or a number of Warrants for a
whole number of Warrant Debt Securities and a fraction of a Warrant
Debt Security. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Warrant
Certificate surrendered for such exchange or registration of
transfer.
4.2 Treatment
of
Holders of Warrant Certificates. The Company, the Warrant Agent and all
other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary
notwithstanding.
4.3 Cancellation
of
Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of
transfer or exercise of the Warrants evidenced thereby shall, if
surrendered to the Company, be delivered to the Warrant Agent and
all Warrant Certificates surrendered or so delivered to the Warrant
Agent shall be promptly canceled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange
therefor or in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time or otherwise dispose of canceled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE
WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant
Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein
set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and
conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained
in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
5.2 Conditions
of
Warrant Agent’s Obligations. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a) Compensation
and
Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or
willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such
liability.
(b) Agent
for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the
Warrant Agent is acting solely as agent of the Company and does not
assume any obligations or relationship of agency or trust for or
with any of the holders of Warrant Certificates or beneficial
owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
holders of Warrant Debt Securities or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder.
Nothing in this Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the
Company is a party, including, without limitation, as Trustee under
the Indenture.
4
(f) No
Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for
interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant
Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement
or any of the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon), all of which are made
solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by
the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 6.2
hereof, to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment
of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised
or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by
the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be
a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 5.2(a)
shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or
under any other applicable Federal or state bankruptcy, insolvency
or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or
its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in
the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
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ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially
adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices
and Demands to the
Company and Warrant
Agent. If the Warrant Agent shall receive any notice or
demand addressed to the Company by the holder of a Warrant
Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to
the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with
respect to this Agreement shall be addressed to [●],
Attention: [●] and any communication from the Warrant Agent
to the Company with respect to this Agreement shall be addressed to
ChromaDex Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: [●] (or such other
address as shall be specified in writing by the Warrant Agent or by
the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
of Prospectus. The Company
shall furnish to the Warrant Agent sufficient copies of a
prospectus meeting the requirements of the Securities Act of 1933,
as amended, relating to the Warrant Debt Securities deliverable
upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant,
the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with
the delivery of the Warrant Debt Securities issued upon such
exercise, a Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals.
The Company will from time to time take all action which may be
necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and
securities act filings under United States Federal and state laws
(including without limitation a registration statement in respect
of the Warrants and Warrant Debt Securities under the Securities
Act of 1933, as amended), which may be or become requisite in
connection with the issuance, sale, transfer, and delivery of the
Warrant Debt Securities issued upon exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants or upon the
expiration of the period during which the Warrants are
exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement
shall give to any person other than the Company, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which as so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same
instrument.
6.10 Inspection
of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Warrant Agent for
inspection by the holder of any Warrant Certificate. The Warrant
Agent may require such holder to submit such holder’s Warrant Certificate for inspection
by it.
6
In Witness
Whereof, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above
written.
ChromaDex
Corporation, as Company
By:
Name:
Title:
Attest:
Countersigned
[●], as
Warrant Agent
By:
Name:
Title:
Attest:
[Signature Page to ChromaDex Corporation Debt Securities Warrant
Agreement]
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Exhibit A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Form
of Legend if Warrants are not immediately
exercisable.]
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot
be exercised.]
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EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED
HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
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CHROMADEX CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
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No.
[●]
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[●]
Warrants
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This
certifies that [●] or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after [●]
p.m., [City] time, [on [●] and] on or before [●] p.m.,
[City] time, on [●], $[●] principal amount of [TITLE OF
WARRANT DEBT SECURITIES] (the “Warrant Debt
Securities”), of ChromaDex Corporation (the
“Company”)
issued or to be issued under the Indenture (as hereinafter
defined), on the following basis: during the period from
[●], through and
including [●], each
Warrant shall entitle the Holder thereof, subject to the provisions
of this Agreement, to purchase the principal amount of Warrant Debt
Securities stated in the Warrant Certificate at the warrant price
(the “Warrant
Price”) of
[●]% of the principal
amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued
interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no
interest shall have been paid on the Warrant Debt Securities, from
the date of their original issuance]. [The original issue discount
($[●] for each $1,000
principal amount of Warrant Debt Securities) will be amortized at a
[●]% annual rate,
computed on a[n] [semi-]annual basis [using a 360-day year
consisting of twelve 30-day months]. The Holder may exercise the
Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full, in lawful money of
the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price for
each Warrant Debt Security with respect to which this Warrant is
exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on
the back hereof duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the
“Warrant
Agent”), which is,
on the date hereof, at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter
defined).
The
term “Holder” as
used herein shall mean the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to
Section 4 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to
purchase Warrant Debt Securities in the principal amount of $1,000
or any integral multiple thereof in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Holder hereof a
new Warrant Certificate evidencing Warrants for the aggregate
principal amount of Warrant Debt Securities remaining
unexercised.
This
Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of [●] (the “Warrant
Agreement”), between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent.
The
Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of
[●] (the “Indenture”),
between the Company and [●], as trustee (such trustee, and any
successors to such trustee, the “Trustee”)]
and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the
Indenture, including the form of the Warrant Debt Securities, are
on file at the corporate trust office of the Trustee.
Transfer
of this Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s
assigns, in the manner and subject to the limitations provided in
the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for
Warrant Certificates representing Warrants for the same aggregate
principal amount of Warrant Debt Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Debt Securities, including,
without limitation, the right to receive payments of principal of
(and premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants of the
Indenture.
Reference
is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
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In Witness Whereof, the Company has caused this Warrant to
be executed in its name and on its behalf by the facsimile
signatures of its duly authorized officers.
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Dated:
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ChromaDex Corporation, as Company
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By:
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Name:
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Title:
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ATTEST:
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COUNTERSIGNED
[●], as Warrant Agent
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By:
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Name:
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Title:
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ATTEST:
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Debt Securities
(as hereinafter defined), the Holder must pay, in lawful money of
the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price in full
for Warrants exercised, to [●] [address of Warrant Agent],
Attention: [●], which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below
and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent
at the appropriate address set forth above. This Warrant
Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the
payment.
(To be
executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise ______ Warrants,
evidenced by this Warrant Certificate, to purchase _______
$[●] principal amount of the [TITLE OF WARRANT DEBT
SECURITIES] (the “Warrant Debt
Securities”), of ChromaDex Corporation and represents
that the undersigned has tendered payment for such Warrant Debt
Securities, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately
available funds], to the order of ChromaDex Corporation, c/o
[insert name and address of Warrant Agent], in the amount of
$_________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Debt Securities be
in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the
number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant
Certificate evidencing the Warrants for the aggregate principal
amount of Warrant Debt Securities remaining unexercised be issued
and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated:
Name:
Please
Print
Address:
(Insert
Social Security or Other Identifying Number of
Holder)
Signature
Guaranteed:
Signature
(Signature
must conform in all respects to name of holder as specified on the
face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
This
Warrant may be exercised at the following addresses: By hand
at:
[●]
By mail
at:
[Instructions
as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing Warrants for the number
of Warrant Debt Securities remaining unexercised—complete as
appropriate.]
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ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer
Warrant]
For Value
Received,
______________ hereby sells, assigns and transfers
unto:
(Please print name
and address including zip code)
Please print Social
Security or other identifying number
the
right represented by the within Warrant to purchase ________
aggregate principal amount of [Title of Warrant Debt Securities] of
ChromaDex Corporation to which the within Warrant relates and
appoints ____________________ attorney to transfer such right on
the books of the Warrant Agent with full power of substitution in
the premises.
Dated:
Name:
Signature
(Signature must
conform in all respects to name of holder as specified on the face
of the Warrant)
Signature
Guaranteed
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