Contract
Exhibit 4.2
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE ON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER SECURITIES LAWS (THE “ACTS”). NEITHER THIS
WARRANT NOR THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER MAY BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THIS WARRANT OR COMMON STOCK
PURCHASABLE HEREUNDER, AS APPLICABLE, UNDER THE ACTS, OR (B) AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACTS.
VOID AFTER 5:00 P.M. NEW YORK TIME, _________, 2022
Issue
Date: _________, 2018
1. Basic Terms. This Warrant
Agreement (the “Warrant”) certifies that, for value
received, the registered holder specified below or its registered
assigns (“Holder”) is the owner of a warrant of
Youngevity International, Inc., a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 (the “Corporation”), subject to
adjustments as provided herein, to purchase Eighty Thousand
(80,000) shares of the Common Stock, $.001 par value, of the
Corporation (the “Common Stock”) from the Corporation
at the price per share shown below (the “Exercise
Price”).
Holder:
Ascendant Alternative Strategies, LLC
Exercise Price per
share: $5.35
Except
as specifically provided otherwise, all references in this Warrant
to the Exercise Price and the number of shares of Common Stock
purchasable hereunder shall be to the Exercise Price and number of
shares after any adjustments are made thereto pursuant to this
Warrant.
2. Corporation’s
Representations/Covenants. The Corporation represents and
covenants that the shares of Common Stock issuable upon the
exercise of this Warrant shall at delivery be fully paid and
non-assessable and free from taxes, liens, encumbrances and charges
with respect to their purchase. The Corporation shall take any
necessary actions to assure that the par value per share of the
Common Stock is at all times equal to or less than the then current
Exercise Price per share of Common Stock issuable pursuant to this
Warrant. The Corporation shall at all times reserve and hold
available sufficient shares of Common Stock to satisfy all
conversion and purchase rights of outstanding convertible
securities, options and warrants of the Corporation, including this
Warrant.
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3. Method of Exercise; Fractional
Shares.
(a) This Warrant is
exercisable at the option of the Holder at any time by surrendering
this Warrant, on any business day during the period (the
“Exercise Period”) beginning the business day after the
issue date of this Warrant specified above and ending at 5:00 p.m.
(New York time) four (4) years after the issue date. To exercise
this Warrant, the Holder shall surrender this Warrant at the
principal office of the Corporation or that of the duly authorized
and acting transfer agent for its Common Stock, together with the
executed exercise form (substantially in the form of that attached
hereto) and together with payment for the Common Stock purchased
under this Warrant. The principal office of the Corporation is
located at the address specified in Section 1 of this Warrant;
provided,
however, that the
Corporation may change its principal office upon notice to the
Holder. Payment shall be made by check payable to the order of the
Corporation or by wire transfer. This Warrant is not exercisable
with respect to a fraction of a share of Common Stock. In lieu of
issuing a fraction of a share remaining after exercise of this
Warrant as to all full shares covered by this Warrant, the
Corporation shall either at its option (a) pay for the fractional
share cash equal to the same fraction at the fair market price for
such share; or (b) issue scrip for the fraction in the registered
or bearer form which shall entitle the Holder to receive a
certificate for a full share of Common Stock on surrender of scrip
aggregating a full share.
(b) In lieu of cash
exercising this Warrant, the Holder may elect to receive Common
Stock equal to the value of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal
office of the Corporation together with notice of such election, in
which event the Corporation shall issue to the Holder a number of
shares of Common Stock computed using the following
formula:
Y (A - B)
X
=
A
Where:
X
-- The
number of shares of Common Stock to be issued to the Holder under
this Section 3(b).
Y
-- The
number of shares of Common Stock purchasable under this Warrant (at
the date of such calculation).
A
-- The
fair market value of a share of Common Stock on the business day
immediately preceding the date of exercise.
B
-- The
Exercise Price (as adjusted to the date of such
calculations).
For
purposes of this Section 3(b), the fair market value of a share of
Common Stock shall mean the average of the closing price of the
Common Stock (or equivalent shares of capital stock for which this
Warrant is exercisable (“Capital Stock”)
underlying the Common Stock) quoted on NASDAQ or other primary
market in which the Common Stock (or equivalent shares of Capital
Stock underlying the Common Stock) are traded or the closing price
quoted on any exchange or electronic securities market on which the
Common Stock (or equivalent shares of Capital Stock underlying the
Common Stock) are listed, whichever is applicable, as published in
The Wall Street Journal for the thirty (30) trading days prior to
the date of determination of fair market value (or such shorter
period of time during which such Common Stock were traded
over-the-counter or on such exchange).
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4. Protection Against Dilution. If
the Corporation, with respect to the Common Stock, (1) pays a
dividend or makes a distribution on shares of Common Stock that is
paid in shares of Common Stock or in securities convertible into or
exchangeable for Common Stock (in which latter event the number of
shares of Common Stock initially issuable upon the conversion or
exchange of such securities shall be deemed to have been
distributed), (2) subdivides outstanding shares of Common Stock,
(3) combines outstanding shares of Common Stock into a smaller
number of shares, or (4) issues by reclassification of Common Stock
any shares of capital stock of the Corporation, the number of
shares as to which this Warrant is exercisable as of the date of
such event and the Exercise Price in effect immediately prior
thereto shall be adjusted so that each Holder thereafter shall be
entitled to receive the number and kind of shares of Common Stock
or other capital stock of the Corporation that it would have owned
or been entitled to receive in respect of this Warrant immediately
after the happening of any of the events described above had this
Warrant been converted immediately prior to the happening of that
event; provided that the aggregate purchase price payable for the
total numbers of shares of Common Stock purchasable under this
Warrant shall remain the same. An adjustment made in accordance
with this section shall become effective immediately after the
record date, in the case of a dividend, and shall become effective
immediately after the effective date, in the case of a subdivision,
combination, or reclassification. If, as a result of an adjustment
made in accordance with this Section 4, the Holder becomes entitled
to receive shares of two or more classes of capital stock or shares
of Common Stock and other capital stock of the Corporation, the
board of directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted Exercise Rate between or
among shares of such classes of capital stock or shares of Common
Stock and other capital stock.
5. Adjustment for Reorganization,
Consolidation, Merger. In the event of any consolidation or
merger to which the Corporation is a party other than a
consolidation or merger in which the Corporation is the continuing
corporation, or the sale or conveyance to another corporation of
the property of the Corporation as an entirety or substantially as
an entirety or any statutory exchange of securities with another
corporation (including any exchange effected in connection with a
merger of a third corporation into the Corporation) (each such
transaction referred to herein as “Reorganization”), no
adjustment of exercise rights or the Exercise Price shall be made;
provided,
however, the Holder
shall thereupon be entitled to receive if the Holder chooses to
exercise the Warrant within ten days of the notice of the
Reorganization and provision shall be made therefor in any
agreement relating to a Reorganization, the kind and number of
securities or property (including cash) of the corporation
resulting from such consolidation or surviving such merger or to
which such properties and assets shall have been sold or otherwise
transferred or with whom securities have been exchanged, which the
Holder would have owned or been entitled to receive as a result of
such Reorganization had this Warrant been exercised immediately
prior to such Reorganization (and assuming the Holder failed to
make an election, if any was available, as to the kind or amount of
securities, property or cash receivable by reason of such
Reorganization; provided that if the kind or amount of securities,
property or cash receivable upon such Reorganization is not the
same for each share of Common Stock in respect of which such rights
of election shall not have been exercised (“non electing
share”) then for the purpose of this section the kind and
amount of securities, property or cash receivable upon such
Reorganization for each non electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of the
non electing shares). In any case, appropriate adjustment shall be
made in the application of the provisions herein set forth with
respect to the rights and interests thereafter of the Holder, to
the end that the provisions set forth herein (including the
specified changes and other adjustments to the conversion rate)
shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares, other securities or property thereafter
receivable upon exercise of this Warrant. The provisions of this
section similarly apply to successive Reorganizations.
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6. Notice of Adjustment. On the
happening of an event requiring an adjustment of the Exercise Price
or the shares purchasable under this Warrant, the Corporation
shall, within thirty (30) business days, give written notice to the
Holder stating the adjusted Exercise Price and the adjusted number
and kind of securities or other property purchasable under this
Warrant resulting from the event and setting forth in reasonable
detail the method of calculation and the facts upon which the
calculation is based.
7. Dissolution, Liquidation. In
case of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation (other than in connection with
reorganization, consolidation, merger, or other transaction covered
by paragraph 5 above) is at any time proposed; the Corporation
shall give at least thirty days prior written notice to the Holder.
Such notice shall contain: (a) the date on which the transaction is
to take place; (b) the record date (which shall be at least thirty
(30) days after the giving of the notice) as of which holders of
Common Stock will be entitled to receive distributions as a result
of the transaction; (c) a brief description of the transaction, (d)
a brief description of the distributions to be made to holders of
Common Stock as a result of the transaction; and (e) an estimate of
the fair value of the distributions. On the date of the
transaction, if it actually occurs, this Warrant and all rights
under this Warrant shall terminate.
8. Rights of Holder. The
Corporation shall deliver to the Holder all notices and other
information provided to its holders of shares of Common Stock or
other securities which may be issuable hereunder concurrently with
the delivery of such information to the holders. This Warrant does
not entitle the Holder to any voting rights or, except for the
foregoing notice provisions, any other rights as a shareholder of
the Corporation. No dividends are payable or will accrue on this
Warrant or the shares of Common Stock purchasable under this
Warrant until, and except to the extent that, this Warrant is
exercised. Upon the surrender of this Warrant and payment of the
Exercise Price as provided above, the person or entity entitled to
receive the shares of Common Stock issuable upon such exercise
shall be treated for all purposes as the record holder of such
shares as of the close of business on the date of the surrender of
this Warrant for exercise as provided above. Upon the exercise of
this Warrant, the Holder shall have all of the rights of a
shareholder in the Corporation.
9. Exchange for Other
Denominations. This Warrant is exchangeable, on its
surrender by the Holder to the Corporation, for a new Warrant of
like tenor and date representing in the aggregate the right to
purchase the balance of the number of shares purchasable under this
Warrant in denominations and subject to restrictions on transfer
contained herein, in the names designated by the Holder at the time
of surrender.
10. Substitution. Upon receipt by
the Corporation of evidence satisfactory (in the exercise of
reasonable discretion) to it of the ownership of and the loss,
theft or destruction or mutilation of the Warrant, and (in the case
or loss, theft or destruction) of indemnity satisfactory (in the
exercise of reasonable discretion) to it, and (in the case of
mutilation) upon the surrender and cancellation thereof, the
Corporation will issue and deliver, in lieu thereof, a new Warrant
of like tenor.
11. Restrictions on Transfer.
Neither this Warrant nor the shares of Common Stock issuable on
exercise of this Warrant have been registered under the Securities
Act or any other securities laws (the “Acts”). Neither
this Warrant nor the shares of Common Stock purchasable hereunder
may be sold, transferred, pledged or hypothecated in the absence of
(a) an effective registration statement for this Warrant or Common
Stock purchasable hereunder, as applicable, under the Acts, or (b)
an opinion of counsel reasonably satisfactory to the Corporation
that registration is not required under such Acts. If the Holder
seeks an opinion as to transfer without registration from
Holder’s counsel, the Corporation shall provide such factual
information to Holder’s counsel as Holder’s counsel
reasonably requests for the purpose of rendering such opinion. Each
certificate evidencing shares of Common Stock purchased hereunder
will bear a legend describing the restrictions on transfer
contained in this paragraph unless, in the opinion of counsel
reasonably acceptable to the Corporation, the shares need no longer
to be subject to the transfer restrictions.
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12. Transfer. Except as otherwise
provided in this Warrant, this Warrant is transferable only on the
books of the Corporation by the Holder in person or by attorney, on
surrender of this Warrant, properly endorsed.
13. Recognition of Holder. Prior to
due presentment for registration of transfer of this Warrant, the
Corporation shall treat the Holder as the person exclusively
entitled to receive notices and otherwise to exercise rights under
this Warrant. All notices required or permitted to be given to the
Holder shall be in writing and shall be given by first class mail,
postage prepaid, addressed to the Holder at the address of the
Holder appearing in the records of the Corporation.
14. Payment of Taxes. The
Corporation shall pay all taxes and other governmental charges,
other than applicable income taxes, that may be imposed with
respect to the issuance of shares of Common Stock pursuant to the
exercise of this Warrant.
15. Headings. The headings in this
Warrant are for purposes of convenience in reference only, shall
not be deemed to constitute a part of this Warrant and shall not
affect the meaning or construction of any of the provisions of this
Warrant.
16. Miscellaneous. This Warrant may
not be changed, waived, discharged or terminated except by an
instrument in writing signed by the Corporation and the Holder.
This Warrant shall inure to the benefit of and shall be binding
upon the successors and assigns of the Corporation. Under no
circumstances may this Warrant be assigned by the
Holder.
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17. Governing Law. This Warrant
shall be governed by and construed in accordance with the laws of
the State of Delaware without giving effect to its principles
governing conflicts of law.
By:
_________________________________
Name:
Xxxxx Xxxxxxx
Title:
President and Chief Financial Officer
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Form of
Transfer
(To be
executed by the Holder to transfer the Warrant)
For
value received the undersigned registered holder of the attached
Warrant hereby sells, assigns, and transfers the Warrant to the
Assignee(s) named below:
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Assignee
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Taxpayer ID
No.
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Number of Shares
subject to transferred Warrant
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The
undersigned registered holder further irrevocably appoints
____________________ _______________________________ attorney (with
full power of substitution) to transfer this Warrant as aforesaid
on the books of the Corporation.
Date:
______________________________
___________________________________
Signature
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Exercise Form
(To be
executed by the Holder to purchase Common Stock pursuant to the
Warrant)
The
undersigned holder of the attached Warrant hereby irrevocably
elects to exercise purchase rights represented by such Warrant for,
and to purchase, ___________ shares of Common Stock of Youngevity
International, Inc., a Delaware corporation, for the cash payment
for those shares.
The
undersigned requests that (1) a certificate for the shares be
issued in the name of the undersigned and (2) if the number of
shares with respect to which the undersigned holder has exercised
purchase rights is not all of the shares purchasable under this
Warrant, that a new Warrant of like tenor for the balance of the
remaining shares purchasable under this Warrant be
issued.
Date:
______________________________
___________________________________
Signature
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