1
Exhibit 99.2
FORM OF
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement") dated January __, 1999, is
made by and between Healthy Planet Products, Inc., a Delaware corporation (the
"Company"), and _________________ (the "Warrantholder").
Pursuant to a Subscription Commitment Agreement between the Company
and the Warrantholder dated the date hereof, the Company has agreed to issue
warrants (the "Warrants") to purchase an aggregate of _________ shares ("Warrant
Shares") of Common Stock, par value $0.01 per share, of the Company (the "Common
Shares") to the Warrantholder at an exercise price of $[ .00] per share.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Warrantholder, for value received, hereby agree
as follows:
Section 1. Form of Warrant Certificates; Transferability of Warrants;
Legend on Warrant Shares.
1.1 Form of Warrant Certificate. The Warrants shall be evidenced by a
Warrant Certificate substantially as set forth in Appendix I attached hereto.
The Warrant Certificate shall be executed on behalf of the Company by its
Chairman of the Board, President or a Vice President, under its corporate seal
reproduced thereon, and attested by its Secretary or an Assistant Secretary. A
Warrant Certificate bearing the signature of an individual who was at any time
the proper officer of the Company shall bind the Company, notwithstanding that
such individual shall have ceased to hold such office prior to the delivery of
such Warrant Certificate or did not hold such office on the date of this
Agreement. Each Warrant Certificate shall be numbered and registered on the
books of the Company when it is issued, and shall be dated as of the date of
signature thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
1.2 Transfer. The Warrant Certificate shall be transferable only on
the books of the Company maintained at its principal office in Petaluma,
California, or wherever its principal executive offices may then be located upon
delivery thereof duly endorsed by the Warrantholder or its duly authorized
attorney or representative, or accompanied by proper evidence of succession,
assignment or authority to transfer. Upon any registration of transfer, the
Company shall execute and deliver a new Warrant Certificate to the person
entitled thereto. All transfers shall be made subject to the provisions of
Section 13 hereof. In the event the
2
Warrants or any portion thereof is transferred, the subsequent holder thereof
shall have no greater rights than those afforded the Warrantholder hereunder.
1.3 Division of Warrants. Subject to all Federal and state securities
laws, a Warrant Certificate may be divided or combined, upon request to the
Company by the Warrantholder, into a Certificate or Certificates representing
the right to purchase the same aggregate number of Warrant Shares. Unless the
context indicates otherwise, the term "Warrantholder" shall include any
transferee or transferees of the Warrants pursuant to this subsection 1.3, and
the term "Warrants" shall include any and all Warrants outstanding pursuant to
this Agreement, including those evidenced by a Certificate or Certificates
issued upon division, exchange, substitution or transfer pursuant to this
Agreement.
1.4 Legend on Warrant Shares. Each Certificate for Warrant Shares
initially issued upon exercise of the Warrant, unless at the time of exercise
such Warrant Shares are registered under the Securities Act of 1933, as amended
(the "Securities Act"), shall bear the following legend:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not be
sold, exchanged, hypothecated or transferred in any manner in the absence
of such registration or an exemption therefrom. The Shares are subject to
the terms of a certain Warrant Agreement dated January __, 1999 with
Healthy Planet Products, Inc., pursuant to which they were issued."
Any Certificate issued at any time in exchange or substitution for any
Certificate bearing such legend (except a new Certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act of the Warrant Shares represented thereby) shall also bear the
above legend unless, in the opinion of counsel satisfactory to the Company, the
securities represented thereby need no longer be subject to such restrictions.
Section 2. Exchange of Warrant Certificate. Any Warrant Certificate
may be exchanged for another Certificate or Certificates entitling the
Warrantholder to purchase a like aggregate number of Warrant Shares as the
Certificate or Certificates surrendered then entitled such Warrantholder to
purchase. Any Warrantholder desiring to exchange a Warrant Certificate shall
make such request in writing delivered to the Company, and shall surrender,
properly endorsed, the Certificate evidencing the Warrants to be so exchanged.
Thereupon, the Company shall execute and deliver to the person entitled thereto
a new Warrant Certificate as so requested.
2
3
Section 3. Term of Warrants; Exercise of Warrants.
3.1 Term. Subject to the terms of this Agreement, the Warrantholder
shall have the right, at any time during the period commencing at 9:00 a.m.,
California time, on the date hereof and ending at 5:00 p.m., California time, on
January __, 2004 (the "Termination Date"), to purchase from the Company up
to the number of fully paid and nonassessable Warrant Shares which the
Warrantholder may at the time be entitled to purchase pursuant to this
Agreement, upon surrender to the Company, at its principal office in Petaluma,
California, or wherever its principal executive offices may then be located, of
the Certificate evidencing the Warrants to be exercised, together with the
purchase form on the reverse thereof duly filled in and signed, and upon payment
to the Company of the applicable Exercise Price (as set forth in Section 7
hereof and as subject to adjustment pursuant to Section 8 hereof), for the
number of Warrant Shares in respect of which such Warrants are then exercised,
but in no event for less than 25 Warrant Shares, unless the Warrants entitled
the Warrantholder on exercise to less than 25 Warrant Shares, in which event the
Warrants can be exercised for such lesser number of Warrant Shares.
3.2 Exercise. Payment of the applicable Exercise Price shall be made
in cash or by check. Upon surrender of the Warrant Certificates and payment of
such Exercise Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Warrantholder and in such name or names as the Warrantholder may designate a
Certificate or Certificates for the number of full Warrant Shares so purchased
upon the exercise of the corresponding Warrants, together with cash, as provided
in Section 9 hereof, in respect of any fractional Warrant Shares otherwise
issuable upon such surrender. Such Certificate or Certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the date
of the surrender of the Warrant Certificate and the payment of the applicable
Exercise Price, as aforesaid, notwithstanding that the Certificates representing
the Warrant Shares shall not actually have been delivered or that the stock
transfer books of the Company shall then be closed. The Warrants shall be
exercisable, at the election of the Warrantholder, either in full or from time
to time in part and, in the event that a Certificate evidencing the Warrants are
exercised in respect of less than all of the Warrant Shares specified therein at
any time prior to the Termination Date, a new Certificate evidencing the
remaining Warrants will be issued by the Company.
Section 4. Payment of Taxes. The Company will pay all documentary
stamp taxes, if any, attributable to the issuance of the Warrant Shares
hereunder.
Section 5. Mutilated or Missing Warrant Certificate. In case the
Certificate or Certificates evidencing the Warrants shall be mutilated, lost,
stolen or destroyed, the Company shall, at the request of the Warrantholder,
issue and deliver in exchange and substitution for and upon cancellation of the
mutilated Certificate or Certificates, or in lieu of and substitution
3
4
for the Certificate or Certificates lost, stolen or destroyed, a new Warrant
Certificate or Certificates of like tenor and representing an equivalent right
or interest, but only upon receipt of evidence satisfactory to the Company of
such loss, theft or destruction of such Warrants and a bond of indemnity, if
requested, also satisfactory in form and amount, at the applicant's cost.
Applicants for such substitute Warrant Certificate shall also comply with such
other reasonable requirements and pay such other reasonable charges as the
Company may prescribe.
Section 6. Reservation of Warrant Shares. There has been reserved, and
the Company shall at all times keep reserved so long as all or any portion of
the Warrants remains outstanding, out of its authorized Common Shares, such
number of Warrant Shares as shall be subject to purchase under such portion of
the Warrants which remains outstanding. Every transfer agent for the Common
Shares and other securities of the Company issuable upon the exercise of the
Warrants will be irrevocably authorized and directed at all times to reserve
such number of authorized Warrant Shares and other securities as shall be
requisite for such purpose. The Company will keep a copy of this Agreement on
file with every transfer agent for the Common Shares and other securities of the
Company issuable upon the exercise of the Warrants. The Company will supply such
transfer agent with duly executed stock and other Certificates for such purpose
and will provide or otherwise make available any cash which may be payable as
provided in Section 9 hereof.
Section 7. Exercise Prices. The prices per Share (the "Exercise
Price") at which Warrant Shares shall be purchasable upon the exercise of the
Warrants shall be [$_.__] per share. The Exercise Price for the set forth herein
shall be subject to further adjustment pursuant to Section 8 hereof.
Section 8. Adjustment of Exercise Prices and Number of Warrant Shares.
8.1 General. The number of Warrant Shares purchasable upon the
exercise of the Warrants and the Exercise Price shall be subject to adjustment
from time to time upon the happening of certain events, as follows: (Any
reference the terms "Warrants" and "Warrant Shares" in this Section 8 shall
refer to the number Warrants or Shares, as the case may be, to the extent such
Warrants have not been exercised as of the close of business on the day prior to
the date when any determination pursuant to this Section 8 is required to be
made.)
(a) In case the Company shall (i) pay a dividend in Common
Shares or make a distribution in Common Shares, (ii) subdivide its outstanding
Common Shares, (iii) combine its outstanding Common Shares into a smaller number
of Common Shares (by way of a reverse stock split or otherwise) or (iv) issue by
reclassification of its Common Shares other securities of the Company, the
number of Warrant Shares purchasable upon exercise of the Warrants immediately
prior thereto shall be adjusted so that the Warrantholder shall be entitled to
receive the kind and number of Warrant Shares or other securities of the Company
which it would have owned or would have been entitled to receive after the
happening of any of the
4
5
events described above, had the Warrants been exercised immediately prior to the
happening of such event or any record date with respect thereto. Any adjustment
made pursuant to this subsection 8.1(a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event.
(b) In case the Company shall issue rights, options, warrants or
convertible securities to all or substantially all of the holders of its Common
Shares, without any charge to such holders, entitling them to subscribe for or
purchase Common Shares at a price per share which is lower at the record date
mentioned below than the Exercise Price, the number of Warrant Shares thereafter
purchasable upon the exercise of the Warrants shall be determined by multiplying
the number of Warrant Shares theretofore purchasable upon the exercise of the
Warrants by a fraction, of which the numerator shall be the number of Common
Shares outstanding immediately prior to the issuance of such rights, options,
warrants or convertible securities plus the number of additional Common Shares
offered for subscription or purchase, and of which the denominator shall be the
number of Common Shares outstanding immediately prior to the issuance of such
rights, options, warrants or convertible securities plus the number of Common
Shares which the aggregate offering price of the total number of Common Shares
offered would purchase at the Exercise Price. Such adjustment shall be made
whenever such rights, options, warrants or convertible securities are issued,
and shall become effective immediately and retroactively after the record date
for the determination of shareholders entitled to receive such rights, options,
warrants or convertible securities.
(c) In case the Company shall distribute to all or substantially
all of the holders of its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions out of earnings) or issue, to all or
substantially all of such holders, without any charge to such holders, rights,
options, warrants or convertible securities containing the right to subscribe
for or purchase Common Shares (excluding those referred to in paragraph (b)
above), then in each case the number of Warrant Shares thereafter purchasable
upon the exercise of the Warrants shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of the Warrants by a
fraction, of which the numerator shall be the Exercise Price on the date of such
distribution, and of which the denominator shall be the Exercise Price on such
date minus the then fair value of the portion of the assets or evidences of
indebtedness so distributed or of such rights, options, warrants or convertible
securities applicable to one share. Such adjustment shall be made whenever any
such distribution is made and shall be made whenever any such distribution is
made and shall become effective on the date of distribution retroactive to the
record date for the determination of shareholders entitled to receive such
distribution.
(d) No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would require an increase or
decrease of at least one percent in the aggregate number of Warrant Shares then
purchasable upon the exercise of the Warrants or, if the Warrants are not then
exercisable, the number of Warrant Shares
5
6
purchasable upon the exercise of the Warrants on the first date thereafter that
the Warrants becomes exercisable; provided however, that any adjustments which
by reason of this subsection 8.a(d) are not required to be made immediately
shall be carried forward and taken into account in any subsequent adjustment.
(e) Whenever the number of Warrant Shares purchasable upon the
exercise of the Warrants is adjusted as herein provided in this subsection 8.1,
the Exercise Price payable upon exercise of the Warrants shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
so purchasable immediately thereafter.
(f)To the extent not covered by paragraphs (b) or (c) hereof, in
case the Company shall sell and issue Common Shares or rights, options, warrants
or convertible securities containing the right to subscribe for or purchase
Common Shares at a price per share (determined, in the case of such rights,
options, warrants or convertible securities, by dividing (i) the total amount
received or receivable by the Company in consideration of the sale and issuance
of such rights, options, warrants or convertible securities, plus the total
consideration payable to the Company upon exercise or conversion thereof, by
(ii) the total number of shares covered by such rights, options, warrants or
convertible securities) lower than the Exercise Price in effect immediately
prior to such sale and issuance, then the Exercise Price shall be reduced to a
price (calculated to the nearest cent) determined by dividing (i) an amount
equal to the sum of (A) the number of Common Shares outstanding immediately
prior to such sale and issuance multiplied by the then existing Exercise Price,
plus (B) the consideration received by the Company upon such sale and issuance,
by (ii) the total number of Common Shares outstanding immediately after such
sale and issuance. The number of Warrant Shares purchasable upon the exercise of
the Warrants shall be that number determined by multiplying the number of
Warrant Shares issuable upon exercise immediately prior to such adjustment by a
fraction, of which the numerator is the Exercise Price in effect immediately
prior to such adjustment and the denominator is the Exercise Price as so
adjusted. For the purposes of such adjustments, the Common Shares which the
holders of any such rights, options, warrants or convertible securities shall be
entitled to subscribe for or purchase shall be deemed to be outstanding as of
the date of such sale and issuance and the consideration received by the Company
therefor shall be deemed to be the consideration received by the Company for
such rights, options, warrants or convertible securities, plus the consideration
stated in such rights, options, warrants or convertible securities to be paid
for the Common Shares covered thereby. In case the Company shall sell and issue
Common Shares or rights, options, warrants or convertible securities containing
the right to subscribe for or purchase Common Shares for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then in determining the "price per share" of Common Shares and the
"consideration received by the Company" for purposes of the first sentence of
this paragraph (f), the Board of Directors shall
6
7
determine the fair value of said property, and such determination, if reasonable
and based upon the Board of Directors' good faith business judgment, shall be
binding upon the Warrantholder. There shall be no adjustment of the Exercise
Price pursuant to this paragraph (f) if the amount of such adjustment would be
less than $.01 per Warrant Share; provided, however, that any adjustment which
by reason of this provision is not required to be made immediately shall be
carried forward and taken into account in any subsequent adjustment.
(g) Whenever the number of Warrant Shares purchasable upon the
exercise of the Warrants or the Exercise Price is adjusted as herein provided in
this subsection 8.1, the Company shall cause to be promptly mailed to the
Warrantholder in accordance with the provisions of Section 12 hereof, notice of
such adjustment or adjustments and a Certificate of a firm of independent public
accountants selected by the Board of Directors of the Company (who may be the
regular accountants employed by the Company) setting forth the number of Warrant
Shares purchasable upon the exercise of the Warrants and the Exercise Price
after such adjustment, a brief statement of the facts requiring such adjustment
and the computation by which such adjustment was made.
(h)For the purpose of this subsection 8.1, the term "Common
Shares" shall mean (i) the class of shares designated as the Common Shares of
the Company at the date of this Agreement or (ii) any other class of shares
resulting from successive changes or reclassifications of such Common Shares
including changes in par value, or from par value to no par value, or from no
par value to par value. In the event that at any time, as a result of an
adjustment made pursuant to this Section 8, the Warrantholder shall become
entitled to purchase any shares of the Company other than Common Shares,
thereafter the number of such other shares so purchasable upon exercise of the
Warrants and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in this Section 8.
(i)Upon the expiration of any rights, options, warrants or
conversion privileges referred to in this Section 8, if such shall not have been
exercised, the number of Warrant Shares purchasable upon exercise of the
Warrants and the Exercise Price, to the extent the Warrants has not then been
exercised, shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) on the basis of (A)
the fact that the only Common Shares so issued were the Common Shares, if any,
actually issued or sold upon the exercise of such privileges, options, warrants
or conversion rights and (B) the fact that such Common Shares, if any, were
issued or sold for the consideration actually received by the Company upon such
exercise plus the consideration , if any, actually received by the Company for
the issuance, sale or grant of all such rights, options, warrants or conversion
rights whether or not exercised; provided, however, that no such readjustment
shall have the effect of increasing the Exercise Price by an amount in excess of
the amount of the adjustment
7
8
initially made in respect of the issuance, sale or grant of such rights,
options, warrants or convertible rights.
8.2 No Adjustment of Dividends. Except as provided in subsection 8.1,
no adjustment in respect of dividends shall be made during the term of the
Warrants or upon the exercise thereof.
8.3 No Adjustment in Certain Cases. No adjustments shall be made
hereunder in connection with the issuance of Common Shares or warrants or any
other rights to purchase Common Shares: (a) pursuant to any underwriting
agreement relating to any public offering or the issuance of Common Shares upon
exercise of an underwriter's Warrants issued in connection with any public
offering, (b) in connection with the exercise of options or warrants outstanding
on the date hereof, (c) in connection with the grant and/or exercise, pursuant
to stock option plans of the Company, of stock options to employees and
consultants of the Company outstanding as of the date hereof,(d) in connection
with the conversion of any Series D Preferred Stock issued and outstanding on
the date of this Agreement, and (e) in connection with the grant and/or exercise
of stock options to non-employee directors pursuant to a director stock option
plan of the Company.
8.4 Preservation of Purchase Rights Upon Reclassification,
Consolidation, etc. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another person of the property, assets or business of the Company as an entirety
or substantially as an entirety, the Company or such successor or purchaser, as
the case may be, shall execute with the Warrantholder an agreement that the
Warrantholder shall have the right thereafter upon payment of the Exercise Price
in effect immediately prior to such action to purchase upon exercise of the
Warrants the kind and amount of shares and other securities and property which
the Warrantholder would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had the Warrants
been exercised immediately prior to such action. In the event of a merger
described in Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended, in which the Company is the surviving corporation, the right to
purchase Warrant Shares under the Warrants shall terminate on the date of such
merger and thereupon the Warrants shall become null and void but only if the
controlling corporation shall agree to substitute for the Warrants another
Warrants which entitles the holders thereof to purchase, upon exercise thereof,
the kind and amount of shares and other securities and property which the
Warrantholder would have owned or had been entitled to receive had the Warrants
been exercised immediately prior to such merger. The adjustments required by
this Subsection 8.4 shall be effected in a manner which shall be as nearly
equivalent as may be practicable to the adjustments provided for elsewhere in
this Section 8. The provisions of this Subsection 8.4 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
8
9
8.5 Statement on Warrant Certificate. Irrespective of any adjustments
in the Exercise Price or the number or kind of shares purchasable upon the
exercise of the Warrants, the Warrant Certificate or Certificates theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
Section 9. Fractional Shares. The Company shall not be required to
issue fractional Warrant Shares on the exercise of the Warrants. If any fraction
of a Warrant Share would, except for the provisions of this Section 9, be
issuable on the exercise of the Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the then Current Market Price
multiplied by such fraction. For purposes of this Agreement, the term "Current
Market Price" shall mean (i) if the Common Shares are traded on a national
securities exchange or on the Nasdaq Stock Market, the average for the 30
consecutive trading days immediately preceding the date in question of the daily
per share closing prices of the Common Shares on the principal securities
exchange on which they are listed or on Nasdaq, as the case may be, or (ii) if
the Common Shares are traded in the over-the-counter market and not on any
national securities exchange or on the Nasdaq Stock Market, the average of the
mean between the per share closing bid and asked prices of the Common Shares on
the 30 consecutive trading days immediately preceding the date in question, as
reported by Nasdaq or an equivalent generally accepted reporting service. The
closing price referred to in clause (i) above shall be the last reported sales
price or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices on such exchange or Nasdaq, as the
case may be, for the days in question.
Section 10. Registration Rights. Any Warrant Shares issued upon
exercise of the Warrants shall be subject to, and have the benefit of, the
registration rights set forth in the Registration Rights Agreement dated the
date hereof by and between the Company and the Warrantholder.
Section 11. No Rights as Shareholder; Notices to Warrantholder.
Nothing contained in this Agreement or in the Warrant Certificate shall be
construed as conferring upon the Warrantholder, or its transferees, any rights
as a shareholder of the Company, including the right to vote, receive dividends,
consent or receive notices as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company or any other matter.
If, however, at any time prior to the expiration of the Warrants and prior to
the exercise thereof, any of the following events shall occur:
(a) any action which would require an adjustment pursuant to Section
8.1 or 8.4; or
(b) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property, assets
and business as an entirety) shall be proposed;
9
10
then in any one or more of said events, the Company shall give notice in writing
of such event to the Warrantholder as provided in Section 11 hereof at least 20
days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the shareholders entitled to any
relevant dividend, distribution, subscription rights or other rights or for the
determination of shareholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record date or the
date of closing the transfer books, as the case may be.
Section 12. Notices. Any notice pursuant to this Agreement by the
Company or by the Warrantholder shall be in writing and shall be deemed to have
been duly given if delivered by hand or if mailed by certified mail, return
receipt requested, postage prepaid, addressed as follows:
(a) If to the Warrantholder - to the address as set forth in a certain
separate Securities Purchase Agreement entered into between the Warrantholder
and the Company.
(b) If to the Company - addressed to Healthy Planet Products, Inc.,
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President; with a
copy to Camhy Xxxxxxxxx & Xxxxx LLP, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention:
Xxxxxxx X. Xxxxxxx, Esq.
or to such other address as any such party may designate by notice to the other
party. Notices shall be deemed given at the time they are delivered personally
or three days after they are mailed in the manner set forth above.
Section 13. Assignment. This Agreement is binding upon and inures to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. This Agreement cannot be assigned, amended or modified by the
parties hereto, except by written agreement executed by the parties.
Section 14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 15. Headings. The headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 16. Merger or Consolidation of the Company. The Company will
not merge or consolidate with or into any other corporation or sell all or
substantially all of its property to another person, unless the provisions of
Section 8.4 are complied with.
10
11
Section 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed entirely within such State, without regard to
its principles of conflicts of laws.
Section 18. Severability. If any provision of this Agreement shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid or unenforceable provision had never been contained
herein.
11
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, on the day and year first above written.
Attest: HEALTHY PLANET PRODUCTS, INC.
By:___________________________ By:____________________________
Name: Name: XXXXX XXXXXX
Title: Title: PRESIDENT
WARRANTHOLDER
____________________________
12
13
Appendix I to Warrant Agreement
THE WARRANTS REPRESENTED BY THIS Certificate HAVE NOT 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 CORPORATION THAT SUCH REGISTRATION
IS NOT REQUIRED.
WARRANTS TO PURCHASE _______________ COMMON SHARES
VOID AFTER 5:00 P.M., CALIFORNIA TIME, ON THE DATE
INDICATED BELOW
HEALTHY PLANET PRODUCTS, INC.
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
This certifies that, for value received, , the
registered holder hereof, or assigns (the "Warrantholder"), is entitled to
purchase from Healthy Planet Products, Inc., a Delaware corporation (the
"Company"), the number of Shares set forth above, at any time during the period
commencing at 9:00 a.m., California time, on the date hereof and ending at 5:00
p.m., California time, on January __, 2004, at the purchase price per Share
(the "Exercise Price") of $____. The number of Shares purchasable upon exercise
of the Warrants represented by this Certificate and the Exercise Price per Share
shall be subject to further adjustment from time to time as set forth in the
Warrants Agreement.
The Warrants represented by this Certificate may be exercised in whole
or in part by presentation of this Certificate with the Purchase Form attached
hereto duly executed and simultaneous payment of the Exercise Price (subject to
adjustment) at the principal office of the Company. Payment of such price shall
be made, at the option of the Warrantholder, in cash or by check.
This Warrant Certificate is issued under and in accordance with the
Warrants Agreement dated the date hereof (the "Warrant Agreement") among the
Company and the Warrantholder and is subject to the terms and provisions
contained in the Warrants Agreement, to all of which the Warrantholder by
acceptance hereof consents.
13
14
Upon any partial exercise of the Warrants represented by this
Certificate, there shall be signed and issued to the Warrantholder a new
Certificate in respect of the Warrants which shall not have been exercised. This
Warrant Certificate may be exchanged at the principal office of the Company for
new Certificates in respect of the same aggregate number of Warrants as are
evidenced by this Certificate. No fractional shares will be issued upon the
exercise of rights to purchase hereunder, but the Company shall pay the cash
value of any fraction upon the exercise of one or more Warrants. This Warrant
Certificate is transferable at the office of the Company in the manner and
subject to the limitations set forth in the Warrants Agreement.
These Warrants do not entitle the Warrantholder to any of the rights
of a shareholder of the Company.
HEALTHY PLANET PRODUCTS, INC.
By:___________________________
Name: XXXXX XXXXXX
Title: PRESIDENT
[Corporate Seal]
Attest:
By:___________________________
Name:
Title:
Dated: January __, 1999
14
15
HEALTHY PLANET PRODUCTS, INC.
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, ____________ shares (the "Shares"), provided for therein, and
requests that Certificates for the Shares be issued in the name of:
______________________________________________________________________
(Please Print Name, Address and Social Security Number)
______________________________________________________________________
and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant Certificate for the balance of the Shares purchasable under
the within Warrant Certificate be registered in the name of the undersigned
Warrantholder or its Assignee as below indicated and delivered to the address
stated below.
The undersigned hereby makes payment of the aggregate amount of
$_________, representing $______ for each such Share.
Dated: _______________, 19___
Name of Warrantholder or Assignee: ____________________
Address: ________________________________________________________
_________________________________________________________________
Signature: ______________________________________________________
Signature Guaranteed: Note: Signature must conform in all
respects to name of holder as
specified on the face of
the Warrant Certificate.
15
16
ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
_________________________________________________________________________
(Name and Address of Assignee Must be Printed or Typewritten)
_________________________________________________________________________
Warrants evidenced by the within Warrant Certificate, hereby irrevocably
constituting and appointing __________________ Attorney to transfer said
Warrants on the books of the Company, with full power of substitution in the
premises.
Dated: ___________, 19__ ___________________________________
Signature of Registered Holder
Signature Guaranteed: Notice: Signature must conform in all
respects to name of holder as
specified on the face of
the Warrant Certificate.
16
