ChromaDex Corporation and _____________, As Warrant Agent Form of Common Stock Warrant Agreement Dated As Of __________ ChromaDex Corporation Form of Common Stock Warrant Agreement
Exhibit
4.13
ChromaDex Corporation
and
Form of Common Stock
Dated As Of __________
ChromaDex Corporation Form of
Common Stock Warrant Agreement
This Common Stock
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 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 Common Stock of the Company, par
value $0.001 per share (the “Warrant
Securities”), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein
called the “Warrant
Certificates”; and
Whereas, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of
the Warrant Certificates and the terms and conditions on which they
may be issued, registered, transferred, exchanged, exercised and
replaced.
Now Therefore,
in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants
alone —Upon
issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other
Securities and Warrants —Warrant Certificates will be issued
in connection with the issuance of the Other Securities but shall
be separately transferable and each Warrant Certificate shall
evidence one or more Warrants.] Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained
herein and therein, to purchase one Warrant Security. [If Other
Securities and Warrants —Warrant Certificates will be issued
with the Other Securities and each Warrant Certificate will
evidence [●] Warrants for each [$[●] 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
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 number of Warrant Securities specified in the
applicable Warrant Certificate at an exercise price of $[●]
per Warrant Security, subject to adjustment upon the occurrence of
certain events, as hereinafter provided. Such purchase price per
Warrant Security 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 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 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 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 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
Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Securities for all
purposes at the opening of business on the next succeeding day on
which the transfer books for the Warrant Securities purchasable
upon the exercise of such Warrants shall be opened, and the
certificates for the Warrant 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 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 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 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 Securities after such exercise, and (iv) such
other information as the Company shall reasonably
require.
(c) As
soon as practicable after the exercise of any Warrant, the Company
shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant 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
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 Securities, and
in the event that any such transfer is involved, the Company shall
not be required to issue or deliver any Warrant Security 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 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 Warrant
Securityholder 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 Securities,
including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to
exercise any voting rights, except to the extent expressly set
forth in this Agreement or the applicable Warrant
Certificate.
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 number of Warrant
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 holder
of any Warrant 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
Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares, the Warrant Price
in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Securities
purchasable under the Warrants shall be proportionately increased.
Conversely, in case the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall
be proportionately increased and the number of Warrant Securities
purchasable under the Warrants shall be proportionately
decreased.
(b) If
at any time or from time to time the holders of Common Stock (or
any shares of stock or other securities at the time receivable upon
the exercise of the Warrants) shall have received or become
entitled to receive, without payment therefor,
(i) Common
Stock or any shares of stock or other securities which are at any
time directly or indirectly convertible into or exchangeable for
Common Stock, or any rights or options to subscribe for, purchase
or otherwise acquire any of the foregoing by way of dividend or
other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or
payable out of the Company’s current or retained
earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe
for or purchase the Company’s indebtedness; or
(iv) Common
Stock or additional stock or other securities or property
(including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement (other
than shares of Common Stock issued as a stock split or adjustments
in respect of which shall be covered by the terms of Section 3.4(a)
above), then and in each such case, the holder of each Warrant
shall, upon the exercise of the Warrant, be entitled to receive, in
addition to the number of Warrant Securities receivable thereupon,
and without payment of any additional consideration therefore, the
amount of stock and other securities and property (including cash
and indebtedness or rights to subscribe for or purchase
indebtedness) which such holder would hold on the date of such
exercise had such holder been the holder of record of such Warrant
Securities as of the date on which holders of Common Stock received
or became entitled to receive such shares or all other additional
stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change
in the Common Stock of the Company (other than as a result of a
subdivision, combination, or stock dividend provided for in
Section 3.4(a) or Section 3.4(b) above), (ii) 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 and which does not result in any change in the Common
Stock other than the issuance of additional shares of Common Stock)
or (iii) 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 or its successor shall be
delivered to the holders of the Warrants, so that the holders of
the Warrants shall have the right at any time prior to the
expiration of the Warrants to purchase, at a total price equal to
that payable upon the exercise of the Warrants, the kind and amount
of shares of stock and other securities and property receivable in
connection with such Reorganization Event by a holder of the same
number of Warrant Securities as were purchasable by the holders of
the Warrants immediately prior to such Reorganization Event. In any
such case appropriate provisions shall be made with respect to the
rights and interests of the holders of the Warrants so that the
provisions hereof shall thereafter be applicable with respect to
any shares of stock or other securities and property deliverable
upon exercise the Warrants, and appropriate adjustments shall be
made to the Warrant Price payable hereunder provided the aggregate
purchase price shall remain the same. In the case of any
transaction described in clauses (ii) and (iii) above, 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 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
(d) The
Company may, at its option, at any time until the Expiration Date,
reduce the then current Warrant Price to any amount deemed
appropriate by the Board of Directors of the Company for any period
not exceeding twenty consecutive days (as evidenced in a resolution
adopted by such Board of Directors), but only upon giving the
notices required by Section 3.5 at least ten days prior to taking
such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the
Warrant Price shall be made by reason of the issuance of shares of
Common Stock, or securities convertible into or exchangeable for
shares of Common Stock, or securities carrying the right to
purchase any of the foregoing or for any other reason
whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of
Warrants. If more than one Warrant shall be exercised at one time
by the same holder, the number of full Warrant Securities which
shall be issuable upon such exercise shall be computed on the basis
of the aggregate number of Warrant Securities purchased pursuant to
the Warrants so exercised. Instead of any fractional Warrant
Security which would otherwise be issuable upon exercise of any
Warrant, the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the last
reported sale price (or bid price if there were no sales) per
Warrant Security, in either case as reported on the principal
registered national securities exchange on which the Warrant
Securities are listed or admitted to trading on the business day
that next precedes the day of exercise or, if the Warrant
Securities are not then listed or admitted to trading on any
registered national securities exchange, the average of the closing
high bid and low asked prices as reported on the OTC Bulletin Board
Service (the “OTC Bulletin
Board”) operated by the Financial Industry Regulatory
Authority, Inc. (“FINRA” ) or,
if not available on the OTC Bulletin Board, then the average of the
closing high bid and low asked prices as reported on any other U.S.
quotation medium or inter-dealer quotation system on such date, or
if on any such date the Warrant Securities are not listed or
admitted to trading on a registered national securities exchange,
are not included in the OTC Bulletin Board, and are not quoted on
any other U.S. quotation medium or inter-dealer quotation system,
an amount equal to the same fraction of the average of the closing
bid and asked prices as furnished by any FINRA member firm selected
from time to time by the Company for that purpose at the close of
business on the business day that next precedes the day of
exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided,
the Company shall mail to each holder of the Warrants at such
holder’s address as it shall appear on the books of the
Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with
the facts, in reasonable detail, upon which such adjustment is
based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant
Price, as adjusted in accordance with the terms hereof, be less
than the par value per share of Common Stock.
3.5 Notice
to Warrantholders. In case
the Company shall (a) effect any dividend or distribution described
in Section 3.4(b), (b) effect any Reorganization Event, (c) make
any distribution on or in respect of the Common Stock in connection
with the dissolution, liquidation or winding up of the Company, or
(d) reduce the then current Warrant Price pursuant to Section
3.4(d), 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 (x) the record date for
such dividend or distribution, or, if a record is not to be taken,
the date as of which the holders of record of Common Stock that
will be entitled to such dividend or distribution are to be
determined, (y) 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
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon
such Reorganization Event, dissolution, liquidation or winding up,
or (z) the first date on which the then current Warrant Price shall
be reduced pursuant to Section 3.4(d). No failure to mail such
notice nor any defect therein or in the mailing thereof shall
affect any such transaction or any adjustment in the Warrant Price
required by Section 3.4.
3.6 [If
the Warrants are Subject to Acceleration by the
Company, Insert — Acceleration of Warrants by the
Company.
(a) At
any time on or after [●], the Company shall have the right to
accelerate any or all Warrants at any time by causing them to
expire at the close of business on the day next preceding a
specified date (the “Acceleration
Date”), if the Market Price (as hereinafter defined)
of the Common Stock equals or exceeds [●] percent
([●]%) of the then effective Warrant Price on any twenty
Trading Days (as hereinafter defined) within a period of thirty
consecutive Trading Days ending no more than five Trading Days
prior to the date on which the Company gives notice to the Warrant
Agent of its election to accelerate the Warrants.
(b) (b)
“Market
Price” for each Trading Day shall be, if the Common
Stock is listed or admitted to trading on any registered national
securities exchange, the last reported sale price, regular way (or,
if no such price is reported, the average of the reported closing
bid and asked prices, regular way) of Common Stock, in either case
as reported on the principal registered national securities
exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any registered national
securities exchange, the average of the closing high bid and low
asked prices as reported on the OTC Bulletin Board operated by
FINRA, or if not available on the OTC Bulletin Board, then the
average of the closing high bid and low asked prices as reported on
any other U.S. quotation medium or inter-dealer quotation system,
or if on any such date the shares of Common Stock are not listed or
admitted to trading on a registered national securities exchange,
are not included in the OTC Bulletin Board, and are not quoted on
any other U.S. quotation medium or inter-dealer quotation system,
the average of the closing bid and asked prices as furnished by any
FINRA member firm selected from time to time by the Company for
that purpose. “Trading Day” shall be each Monday
through Friday, other than any day on which securities are not
traded in the system or on the exchange that is the principal
market for the Common Stock, as determined by the Board of
Directors of the Company. In the event of an acceleration of less
than all of the Warrants, the Warrant Agent shall select the
Warrants to be accelerated by lot, pro rata or in such other manner
as it deems, in its discretion, to be fair and
appropriate.
(c) Notice
of an acceleration specifying the Acceleration Date shall be sent
by mail first class, postage prepaid, to each registered holder of
a Warrant Certificate representing a Warrant accelerated at such
holder’s address appearing on the books of the Warrant Agent
not more than sixty days nor less than thirty days before the
Acceleration Date. Such notice of an acceleration also shall be
given no more than twenty days, and no less than ten days, prior to
the mailing of notice to registered holders of Warrants pursuant to
this Section 3.6, by publication at least once in a newspaper of
general circulation in the City of New York.
(d) Any
Warrant accelerated may be exercised until [●] p.m., [City]
time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in Section
2.]
4
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 number of Warrant 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 Security or a number of Warrants for a whole
number of Warrant Securities and a fraction of a Warrant 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 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.
5
(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.
6
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 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, 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 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 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 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
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.
7
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 Common Stock Warrant
Agreement]
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 [●].
CHROMADEX CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.001 PER SHARE
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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 [●], [●] shares of Common Stock,
par value $0.001 per share (the “Warrant
Securities”), of ChromaDex Corporation (the
“Company”) on
the following basis: during the period from [●], through and
including [●], the exercise price per Warrant Security will
be $[●], subject to adjustment as provided in the Warrant
Agreement (as hereinafter defined) (the “Warrant
Price”). 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
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 a whole number of Warrant Securities 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 number
of Warrant 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.
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
number of Warrant Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of dividends or
distributions, if any, on the Warrant Securities (except to the
extent set forth in the Warrant Agreement) or to exercise any
voting rights.
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.
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 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 _______ shares
of the Common Stock, par value $0.001 per share (the
“Warrant
Securities”), of ChromaDex Corporation and represents
that the undersigned has tendered payment for such Warrant
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 Warrant 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 number of Warrant
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 Securities and, if applicable,
Warrant Certificates evidencing Warrants for the number of Warrant
Securities remaining unexercised—complete as
appropriate.]
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 _______________
shares of [Title of Warrant 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
