LIFEVANTAGE CORPORATION WARRANT TO PURCHASE COMMON STOCK
Exhibit 4.01
Form of Warrant
Form of Warrant
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES
UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
LIFEVANTAGE CORPORATION
WARRANT TO PURCHASE COMMON STOCK
| No. CW-[___] | , 2007 |
Void After ______, 2012
This Certifies That, for value received, ___, with its principal
office at ___, or assigns (the “Holder” or “Purchaser”), is entitled to subscribe
for and purchase at the Exercise Price (defined below) from LifeVantage Corporation, a
Colorado corporation, with its principal office at 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (the “Company”), ___shares of Common Stock
of the Company (the “Common Stock”), as provided herein.
This Warrant is one of the warrants (collectively, the “Warrants”) referred to in, and
is executed and delivered in connection with, those certain Unit Subscription Agreements,
dated on or about ______, 2007 and executed by the Company and the Holder, among others
(as the same may from time to time be amended, modified or supplemented or restated, the
“Subscription Agreements”). Additional rights and obligations of the Holder and the
Company are set forth in the Subscription Agreement. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Subscription Agreement.
1. Definitions. As used herein, the following terms shall have the following respective
meanings:
“Equity Conditions” means the following:
| • | The Company shall have exercised to Common Stock all Warrants from Holders thereof who have properly requested such exercise; | ||
| • | There will be an effective Registration Statement with respect to the Common Stock underlying the Warrants; | ||
| • | The Common Stock is listed for trading on the American Stock Exchange, the New York Stock Exchange, the NASDAQ National Market, the NASDAQ Small Cap Market or the OTC Bulletin Board; and | ||
| • | The Company shall have a sufficient number of authorized but unissued and otherwise unreserved Common Stock to satisfy all potential exercises of Warrants to Common Stock. |
“Exercise Period” shall mean the time period commencing with the date of this Warrant and
ending five years later.
“Exercise Price” shall mean $0.30 per share, subject to adjustment pursuant to Section 5
below.
“Exercise Shares” shall mean the shares of the Company’s Common Stock issuable upon exercise
of this Warrant, subject to adjustment pursuant to the terms herein, including but not limited to
adjustment pursuant to Section 5 below.
“Market Price” shall mean (i) the last reported closing sale price for the Common Stock as
officially reported by the OTC Bulletin Board, if the Common Stock is then traded on the OTC
Bulletin Board; or (ii) the last reported closing sale price on the Nasdaq SmallCap or National
Market or a national securities exchange, if the Common Stock is then traded on the Nasdaq SmallCap or National Market or a
national securities exchange, in each case as officially reported by the Nasdaq SmallCap or
National Market or such national securities exchange; or (iii) if the Common Stock is not then
traded on the OTC Bulletin Board, the Nasdaq SmallCap Market, the Nasdaq National Market or a
national securities exchange, but is then traded in the over-the-counter market, then the average
of the last reported bid and asked prices of the Common Stock reported by the National Quotation
Bureau, Inc. or similar bureau if the National Quotation Bureau, Inc. is no longer reporting such
information.
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“Trading Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading Market” means the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the Nasdaq SmallCap Market, the American
Stock Exchange, the New York Stock Exchange or the Nasdaq National Market.
“VWAP” means, for any date, the price determined by the first of the following clauses
that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Stock for such date (or the nearest preceding date) on
the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg
Financial L.P. (based on a Trading Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time); (b)
if the Common Stock is not then listed or quoted on a Trading Market and if prices for the Common
Stock are then quoted on the OTC Bulletin Board, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the OTC Bulletin Board; (c) if the Common
Stock is not then listed or quoted on the OTC Bulletin Board and if prices for the Common Stock are
then reported in the “Pink Sheets” published by the Pink sheets, LLC (or a similar organization or
agency succeeding to its functions of reporting prices), the most recent bid price per share of the
Common Stock so reported; or (d) in all other cases, the fair market value of a share of Common
Stock as determined by an independent appraiser selected in good faith by the Purchasers and
reasonably acceptable to the Corporation.
2. Exercise of Warrant. The rights represented by this Warrant may be exercised in whole or
in part at any time during the Exercise Period, by delivery of the following to the Company at its
address set forth above (or at such other address as it may designate by notice in writing to the
Holder):
| (a) | an executed notice of exercise in the form attached hereto (a “Notice of Exercise”); | ||
| (b) | payment of the Exercise Price in cash or by check; and | ||
| (c) | this Warrant. |
Upon the exercise of the rights represented by this Warrant, a certificate or
certificates for the Exercise Shares so purchased, registered in the name of the Holder or
persons affiliated with the Holder, if the Holder so designates, shall be issued and
delivered to the Holder within a reasonable time after the exercise rights represented by
this Warrant shall have been so exercised. The person in whose name any certificate or
certificates for Exercise Shares are to be issued upon exercise of this Warrant shall be
deemed to have become the holder of record of such shares on the date on which this Warrant
was surrendered and payment of the Exercise Price was made, irrespective of the date of
delivery of such certificate or certificates.
2.1 Net Exercise. Beginning on ______ ___, 2008, during any such time that the Company shall
fail to have an effective registration statement available for resale of the Exercise Shares and
the Conversion Shares underlying the Debentures, then notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company’s Common Stock is greater than the
Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant
by payment of cash, the Holder may elect (the “Conversion Right”) to receive shares equal to the
value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company together with the properly endorsed Notice of
Exercise in which event the Company shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
X
|
= | Y (A-B) | ||||
| ——— | ||||||
| A |
Where X =
|
the number of shares of Common Stock to be issued to the Holder | ||
Y =
|
the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation) | ||
A =
|
the VWAP on the Trading Day immediately preceding the date of such election | ||
B =
|
Exercise Price (as adjusted to the date of such calculation) |
3. Covenants of the Company. The Company covenants and agrees that all Exercise Shares that
may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be
validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. The Company further covenants and agrees that the
Company will at all times during the Exercise Period, have authorized and reserved, free from
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preemptive rights, a sufficient number of shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant. If at any time during the Exercise Period the number of
authorized but unissued shares of Common Stock shall not be sufficient to permit exercise of this
Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes.
4. Representations, Warranties and Covenants of Holder.
4.1 Acquisition of Warrant for Personal Account. The Holder represents and
warrants that it is acquiring the Warrant solely for its account for
investment and not with a view to or for sale or distribution of said Warrant
or any part thereof, other than potential transfers between affiliates
(including affiliated funds). The Holder also represents that the entire
legal and beneficial interests of the Warrant and Exercise Shares the Holder
is acquiring is being acquired for, and will be held for, its account only.
4.2 Securities Are Not Registered.
(a) The Holder understands that the Warrant and the Exercise Shares have not
been registered under the Securities Act of 1933, as amended (the “Act”) on
the basis that no distribution or public offering of the stock of the Company
is to be effected. The Holder realizes that the basis for the exemption may
not be present if, notwithstanding its representations, the Holder has a
present intention of acquiring the securities for a fixed or determinable
period in the future, selling (in connection with a distribution or
otherwise), granting any participation in, or otherwise distributing the
securities. The Holder has no such present intention, other than potential
transfers between affiliates (including affiliated funds).
(b) The Holder recognizes that the Warrant and the Exercise Shares must be held
indefinitely unless they are subsequently registered under the Act or an exemption from
such registration is available.
(c) The Holder is aware that neither the Warrant nor the Exercise Shares may be sold
pursuant to Rule 144 adopted under the Act unless certain conditions are met, including,
among other things, the existence of a public market for the shares, the availability of
certain current public information about the Company, the resale following the required
holding period under Rule 144 and the number of shares being sold during any three month
period not exceeding specified limitations. Xxxxxx is aware that the conditions for resale
set forth in Rule 144 have not been satisfied and that the Company presently has no plans
to satisfy these conditions in the foreseeable future.
4.3 Disposition of Warrant and Exercise Shares.
(a) The Holder further agrees not to make any disposition of all or any part of the
Warrant or Exercise Shares in any event unless and until:
(i) The Company shall have received a letter secured by the Holder from the Securities
and Exchange Commission stating that no action will be recommended to the Commission with
respect to the proposed disposition; or
(ii) There is then in effect a registration statement under the Act covering such
proposed disposition and such disposition is made in accordance with said registration
statement; or
(iii) The Holder shall have notified the Company of the proposed disposition and shall
have furnished the Company with a statement briefly describing the circumstances
surrounding the proposed disposition, together with a written opinion of such holders
counsel, if requested by the Company, to the effect that such offer, sale or other
disposition may be effected without registration or qualification (under the Securities Act
as then in effect or any federal or state law then in effect); provided, however, that such
statement will not be required if the disposition is permitted under Rule 144 of the
Securities Act.
(b) Notwithstanding the provisions of paragraph (a) above, the Holder may assign this
Warrant and the Exercise Shares to (i) any partner or retired partner of the Holder if
Xxxxxx is a partnership, (ii) any member or former member of the Holder if Holder is a
limited liability company, (iii) any affiliate, including affiliated funds or (iv) any
family member or trust for the benefit of the Holder if the Holder is an individual;
provided that the Company is given written notice thereof.
(c) The Holder understands and agrees that all certificates evidencing the shares to
be issued to the Holder may bear the following legend:
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
5. Adjustment of Exercise Price; Effect of Organic Changes
5.1 Adjustment of Exercise Price. In the event of changes in the outstanding Common
Stock of the Company by reason of stock dividends, splits, recapitalizations,
reclassifications, combinations or exchanges of shares, separations, reorganizations,
liquidations, or the like, the number and class of shares available under the Warrant in
the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder
of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class,
and kind of shares as the Holder would have owned had the Warrant been exercised prior to
the event and had the Holder continued to hold such shares until after the event requiring
adjustment. The form of this Warrant need not be changed because of any adjustment in the
number of Exercise Shares subject to this Warrant.
5.2 Acquisition. Holder agrees that, in the event of an Acquisition, either (a)
Holder shall exercise its purchase right under this Warrant and such exercise will be
deemed effective immediately prior to the consummation of such Acquisition or (b) if Holder
elects not to exercise the Warrant, this Warrant will expire upon the consummation of such
Acquisition. The Company shall provide the Holder with written notice of its request
relating to the foregoing (together with such reasonable information as the Holder may
request in connection with such contemplated Acquisition giving rise to such notice), which
is to be delivered to Holder not less than ten (10) days prior to the closing of the
proposed Acquisition. For the purpose of this Warrant, “Acquisition” means any sale,
license, or other disposition of all or substantially all of the assets of the Company, or
any reorganization, consolidation, or merger of the Company where the holders of the
Company’s securities before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the transaction.
6. Fractional Shares. No fractional shares shall be issued upon the exercise of
this Warrant as a consequence of any adjustment pursuant hereto. All Exercise
Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of
determining whether the exercise would result in the issuance of any fractional
share.
7. Redemption. The Company may redeem this Warrant at its option at a redemption
price of $0.01 per Exercise Share, at any time during the term of this Warrant,
provided that: (i) the Equity Conditions have been met, (ii) the Market Price shall
have equaled or exceeded 250% of the Conversion Price (as defined in the Convertible
Debentures issued pursuant to the Subscription Agreements) for any 20 consecutive
Trading Days ending not later than the third day prior to the date on which the
Notice of Redemption, as defined below, is given (the “Calculation Period”); and
(iii) the average trading volume shall have exceeded 150,000 shares of Common Stock
per day during the Calculation Period. Notice of redemption (the “Notice of
Redemption”) shall be given in writing by the Company not later than the 15th day
before the date fixed for redemption. On and after the date fixed for redemption,
the Holder shall have no rights with respect to the Warrants except to receive the
$0.01 per Exercise Share upon surrender of this Warrant. After Notice of Redemption
is received by the Holder, but prior to the date fixed for redemption, the Holder
may still exercise this Warrant.
8. No Stockholder Rights. This Warrant in and of itself shall not entitle the
Holder to any voting rights or other rights as a stockholder of the Company.
9. Transfer of Warrant. Subject to applicable laws, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized attorney,
upon delivery of this Warrant and the form of assignment attached hereto to any
transferee designated by Xxxxxx.
10. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise
as it may reasonably impose (which shall, in the case of a mutilated Warrant,
include the surrender thereof), issue a new Warrant of like denomination and tenor
as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
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11. Notices, etc. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex, facsimile or electronic mail if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the Company at the
address listed on the signature page and to Holder at the address listed on the
first page of this Warrant or at such other address as the Company or Holder may
designate by ten (10) days advance written notice to the other parties hereto.
12. Acceptance. Receipt of this Warrant by the Holder shall constitute acceptance
of and agreement to all of the terms and conditions contained herein.
13. Amendment and Waiver. This Warrant may be amended, together with all similar
Warrants purchased pursuant to the Subscription Agreements, as provided in Section
O(3) of the Subscription Agreements.
14. Governing Law. This Warrant and all rights, obligations and liabilities
hereunder shall be governed by the laws of the State of Colorado.
[Remainder of Page Intentionally Left Blank]
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In Witness Whereof, the Company has caused this Warrant to be executed by its
duly authorized officer as of ______ ___, 2007.
| LifeVantage Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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