ENHANCE SKIN PRODUCTS INC. FORM OF COMMON STOCK PURCHASE WARRANT
EXHIBIT
4.1
THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, ASSIGNED OR HYPOTHECATED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT COVERING SUCH SECURITIES, THE SALE IS
MADE
IN ACCORDANCE WITH RULE 144 OR RULE 701 UNDER THE ACT OR THE COMPANY RECEIVES
AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT.
FORM
OF
Warrant
No.: ____
August
__, 2008
THIS
CERTIFICATE certifies that ____________________, having an address at
______________________________________, or permitted assignees is the registered
holder (the “Holder”)
of
this Common Stock Purchase Warrant (the “Warrant”)
to
purchase shares of the common stock, $.001 par value per share (the
“Common
Stock”),
of
Enhance Skin Products Inc., a corporation duly organized and validly existing
under the laws of the State of Nevada (the “Company”).
This
Warrant has been issued to the Holder in connection with the private placement
of securities offered pursuant to a subscription agreement, dated as of August
__, 2008 (together with all documents and filings attached thereto, the
“Subscription
Document”).
FOR
VALUE
RECEIVED, the Company hereby certifies that the Holder is entitled to purchase
from the Company ____________ duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock (the “Warrant
Shares”)
at a
purchase price per share of Common Stock equal to $1.40 (the “Warrant
Price”),
and
subject to the terms, conditions and adjustments set forth below in this Warrant
and in the Subscription Document. The person or entity in whose name this
Warrant is registered on the records of the Company regarding registration
and
transfers of this Warrant (the “Warrant
Register”)
is the
owner and holder thereof for all purposes, except as described in Section 8
hereof.
1. Vesting
of Warrant.
This
Warrant shall vest and become exercisable immediately following the Closing
(as
defined in the Subscription Document).
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2.
Expiration
of Warrant.
This
Warrant shall expire at 5:00 p.m., Nevada local time, on August __, 2010, which
is the second anniversary date of the Closing (the "Expiration
Date").
3. Required
Exercise of Warrant. This
Warrant must be exercised within 10 Business Days (as defined below) of written
notice by the Company to the Holder hereof that the Company has attained
$2,000,000 in sales revenue. If not exercised within such period, this Warrant
will expire worthless.
4. Exercise
of Warrant.
4.1
Manner
of
Exercise. This Warrant may only be exercised by the Holder hereof, in accordance
with the terms and conditions hereof, in whole or in part with respect to any
portion of this Warrant, into shares of Common Stock, during normal business
hours on any day other than a Saturday or a Sunday or a day on which commercial
banking institutions in Carson City, Nevada are authorized by law to be closed
(a “Business
Day”)
on or
prior to the Expiration Date with respect to such portion of this Warrant,
by
surrender of this Warrant to the Company at its office maintained pursuant
to
Section 11.2(a) hereof, accompanied by an exercise notice in substantially
the
form attached to this Warrant as Exhibit A duly executed by or on behalf of
the
Holder together with the payment of the Warrant Price in cash.
4.2 When
Exercise Effective. Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the Business Day on
which
this Warrant shall have been surrendered to the Company as provided in Section
4.1 hereof (“Exercise Date”), and, at such time, the corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or a governmental agency (a “Person”
or
the
“Persons”)
in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon exercise as provided herein shall be deemed to have
become the holder or holders of record thereof.
4.3
Delivery
of Stock Certificates. As soon as practicable after each exercise of this
Warrant, in whole or in part, and in any event within five (5) Business Days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered
to
the Holder hereof or, subject to Section 10 hereof, as the Holder (upon payment
by the Holder of any applicable transfer taxes) may direct:
(a)
a
certificate or certificates (with appropriate restrictive legends, as
applicable) for the number of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock to which the Holder shall be entitled
upon
exercise plus, in lieu of any fractional share to which the Holder would
otherwise be entitled, all issuances of Common Stock shall be rounded up to
the
nearest whole share.
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(b)
in
case exercise is in part only, a new Warrant of like tenor, dated the date
hereof and calling in the aggregate on the face thereof for the number of shares
of Common Stock equal to the number of shares called for on the face of this
Warrant minus the number of shares designated by the Holder upon exercise as
provided in Section 3.1 hereof (without giving effect to any adjustment
thereof).
4.4 Shares
to
be Fully Paid; Reservation of Shares. The Company covenants and agrees that
all
shares of Common Stock which may be issued upon the exercise of rights presented
by this Warrant will, upon issuance by the Company, be validly issued, fully
paid and nonassessable, and free from preemptive rights and free from all taxes,
liens and charges with respect thereto. The Company further covenants and agrees
that, from and after the date of issuance of the Warrant and during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized, and reserve, free from preemptive
rights, out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the exercise of this Warrant, a sufficient number
of
shares of Common Stock to provide for the exercise of the rights represented
by
this Warrant.
4.5 Company
to Reaffirm Obligations. The Company will, at the time of each exercise of
this
Warrant, upon the written request of the Holder hereof, acknowledge in writing
its continuing obligation to afford to the Holder all rights (including without
limitation any rights to registration of the shares of Common Stock issued
upon
exercise) to which the Holder shall continue to be entitled after exercise
in
accordance with the terms of this Warrant; provided,
however,
that if
the Holder shall fail to make a request, the failure shall not affect the
continuing obligation of the Company to afford the rights to such
Holder.
5.
Anti-dilution
Adjustment.
5.1
Stock
Dividends, Stock Splits, Etc. If the Company declares or pays a dividend on
its
Common Stock payable in Common Stock or other securities, or subdivides the
outstanding Common Stock into a greater amount of Common Stock, then upon
exercise of this Warrant, for each Warrant Share acquired, Holder shall receive,
without cost to Holder, the total number and kind of securities to which Holder
would have been entitled had Holder owned the Warrant Shares of record as of
the
date the dividend or subdivision occurred.
5.2 Reclassifications,
Exchange or Substitution. Upon any reclassification, exchange, substitution,
or
other event that results in a change of the number and/or class of the
securities issuable upon exercise of this Warrant, Holder shall be entitled
to
receive, upon exercise of this Warrant, the number and kind of securities and
property that Holder would have received for the Warrant Shares if this Warrant
had been exercised immediately before such reclassification, exchange,
substitution, or other event. The Company or its successor shall promptly issue
to Holder a new Warrant for such new securities or other property. The new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may
be practicable to the adjustments provided for in this Section 4.2, including,
without limitation, adjustments to the Warrant Price and to the number of
securities or property issuable upon exercise of the new Warrant. The provisions
of this Section 5.2 shall similarly apply to successive reclassifications,
exchanges, substitutions, or other events.
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5.3
Adjustments for Combinations, Etc. If the outstanding shares of Common Stock
are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Warrant Price shall be proportionately increased.
5.4
Merger or Consolidation. In case of any consolidation of the Company with,
or
merger of the Company into any other corporation, or in the case of any sale
or
conveyance of all or substantially all of the assets of the Company other than
in connection with a plan of complete liquidation of the Company, then as a
condition of such consolidation, merger or sale or conveyance, adequate
provision will be made whereby the registered holder of the Warrant will have
the right to acquire and receive upon exercise of this Warrant in lieu of the
shares of Common Stock immediately theretofore subject to acquisition upon
the
exercise of this Warrant, such shares of stock, securities or assets as may
be
issued or payable with respect to or in exchange for the number of shares of
Common Stock immediately theretofore subject to acquisition and receivable
upon
exercise of this Warrant had such consolidation, merger or sale or conveyance
not taken place. In any such case, the Company will make appropriate provision
to insure that the provisions of this Section 5 hereof will thereafter be
applicable as nearly as may be in relation to any shares of stock or securities
thereafter deliverable upon the exercise of this Warrant.
5.5 No
Fractional Shares. No fractional shares shall be issuable upon exercise of
this
Warrant and the number of Warrant Shares to be issued shall be rounded down
to
the nearest whole share.
6. No
Impairment.
The
Company will not, by amendment of its charter or through reorganization,
consolidation, merger, dissolution, sale of assets or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the
terms
of this Warrant but will at all times carry out all such terms and take all
such
action as may be reasonably necessary or appropriate in order to protect the
rights of the holder of this Warrant against impairment.
7. Restrictions
on Transfer.
7.1
Restrictive
Legends. This Warrant and each Warrant issued upon transfer or in substitution
for this Warrant pursuant to Section 10, each certificate for Common Stock
issued upon the exercise of any Warrant and each certificate issued upon the
transfer of any such Common Stock shall be transferable only upon satisfaction
of the conditions specified in this Section 7 and Section 9.4. Each of the
foregoing securities shall be stamped or otherwise imprinted with a legend
reflecting the restrictions on transfer set forth in Section 9 and Section
10.4
hereof and any restrictions required under the Securities Act of 1933, as
amended (the “Act”).
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7.2 Notice
of
Proposed Transfer; Opinion of Counsel. Prior to any transfer of any securities
which are not registered under an effective registration statement under the
Act
(“Restricted
Securities”),
the
Holder will give written notice to the Company of the Holder's intention to
affect a transfer and to comply in all other respects with this Section 7.2.
Each notice (i) shall describe the manner and circumstances of the proposed
transfer, and (ii) shall designate counsel for the Holder giving the notice.
The
Holder giving notice will submit a copy thereof to the counsel designated in
the
notice. The following provisions shall then apply:
(a)
If in
the opinion of counsel for the Holder reasonably satisfactory to the Company
the
proposed transfer may be effected without registration of Restricted Securities
under the Act (which opinion shall state the basis of the legal conclusions
reached therein), the Holder shall thereupon be entitled to transfer the
Restricted Securities in accordance with the terms of the notice delivered
by
the Holder to the Company. Each certificate representing the Restricted
Securities issued upon or in connection with any transfer shall bear the
restrictive legends required by Section 7.1 hereof.
(b)
If
the opinion called for in (a) above is not delivered, the Holder shall not
be
entitled to transfer the Restricted Securities until either (x) receipt by
the
Company of a further notice from such Holder pursuant to the foregoing
provisions of this Section 7.2 and fulfillment of the provisions of clause
(a)
above, or (y) such Restricted Securities have been effectively registered under
the Act.
(c)
Notwithstanding the foregoing, the restrictions imposed upon the transferability
of any of its rights to acquire Common Stock or Common Stock issuable on the
exercise of such rights do not apply to transfers from the beneficial owner
of
any of the aforementioned securities to its nominee or from such nominee to
its
beneficial owner, and shall terminate as to any particular share of Common
Stock
when (1) such security shall have been effectively registered under the
Securities Act and sold by the holder thereof in accordance with such
registration or (2) such security shall have been sold without registration
in
compliance with Rule 144 under the Securities Act, or (3) a letter shall have
been issued to the Holder at its request by the staff of the Securities and
Exchange Commission (the “SEC”)
or a
ruling shall have been issued to the Holder at its request by the SEC stating
that no action shall be recommended by such staff or taken by SEC, as the case
may be, if such security is transferred without registration under the
Securities Act in accordance with the conditions set forth in such letter or
ruling and such letter or ruling specifies that no subsequent restrictions
on
transfer are required. Whenever the restrictions imposed hereunder shall
terminate, as hereinabove provided, the Holder or holder of a share of Common
Stock then outstanding as to which such restrictions have terminated shall
be
entitled to receive from the Company, without expense to such holder, one or
more new certificates for the Warrant or for such shares of Common Stock not
bearing any restrictive legend.
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8.
Ownership,
Transfer and Substitution of Warrant.
8.1
Ownership
of Warrant. The Company may treat the person in whose name this Warrant is
registered in the Warrant Register maintained pursuant to Section 8.2(b) hereof
as the owner and holder thereof for all purposes, notwithstanding any notice
to
the contrary, except that, if and when any Warrant is properly assigned in
blank, the Company may (but shall not be obligated to) treat the bearer thereof
as the owner of such Warrant for all purposes, notwithstanding any notice to
the
contrary. Subject to Section 7 hereof, this Warrant, if properly assigned,
may
be exercised by a new holder without a new Warrant first having been
issued.
8.2
Office;
Transfer and Exchange of Warrant.
(a)
The
Company will maintain its principal offices at 000 Xxxxx Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxx, XX 00000 as the office where notices, presentations and demands
in
respect of this Warrant may be made upon it until the Company notifies the
holder of this Warrant of any change of location of the office.
(b)
The
Company shall cause to be kept at its office maintained pursuant to Section
8.2(a) hereof a Warrant Register for the registration and transfer of this
Warrant. The names and addresses of holders of this Warrant, the transfers
thereof and the names and addresses of transferees of this Warrant shall be
registered in such Warrant Register. The Person in whose name any Warrant shall
be so registered shall be deemed and treated as the owner and holder thereof
for
all purposes of this Warrant, and the Company shall not be affected by any
notice or knowledge to the contrary.
(c)
Upon
the
surrender of this Warrant, properly endorsed, for registration of transfer
or
for exchange at the office of the Company maintained pursuant to Section 8.2(a)
hereof, the Company at its expense will (subject to compliance with Section
7
hereof, if applicable) execute and deliver to or upon the order of the Holder
thereof a new Warrant of like tenor, in the name of such holder or as such
holder (upon payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the number of shares
of
Common Stock called for on the face of this Warrant so surrendered.
8.3
Replacement
of Warrant. Upon receipt of evidence reasonably satisfactory to the Company
of
the loss, theft, destruction or mutilation of this Warrant and, in the case
of
any such loss, theft or destruction of this Warrant, upon delivery of indemnity
reasonably satisfactory to the Company in form and amount or, in the case of
any
mutilation, upon surrender of this Warrant for cancellation at the office of
the
Company maintained pursuant to Section 8.2(a) hereof, the Company at its expense
will execute and deliver, in lieu thereof, a new Warrant of like tenor and
dated
the date hereof.
8.4
Restrictions
on Transfer. In addition to the restrictions on transfer set forth in Section
8
hereof, neither this Warrant nor any portion of this Warrant may be transferred
without the consent of the Company.
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9.
No
Rights or Liabilities as Stockholder.
No
Holder shall be entitled to vote or receive dividends or be deemed the holder
of
any shares of Common Stock or any other securities of the Company which may
at
any time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election
of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, consolidation, merger, conveyance, or otherwise) or to receive notice
of
meetings, or to receive dividends or subscription rights or otherwise until
this
Warrant shall have been exercised and the shares of Common Stock purchasable
upon the exercise hereof shall have become deliverable, as provided herein.
The
Holder will not be entitled to share in the assets of the Company in the event
of a liquidation, dissolution or the winding up of the Company.
10.
Notices
of Record Date, Etc.
In case
the Company shall take a record of the holders of its Common Stock (or other
stock or securities at the time deliverable upon the exercise of this Warrant)
for the purpose of entitling or enabling them to receive any stock dividend
or
other non-cash distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to receive
any other right; or of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company; or of the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to
the
registered holder of this Warrant a notice specifying, as the case may be:
(i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at
the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up. Such notice shall be mailed at least ten (10) days prior to the
record date or effective date for the event specified in such notice unless
such
prior notice is waived by the registered holder of this Warrant. Provided,
however, that the failure by the Company to provide such notice shall not
invalidate any such action.
11.
Notices.
Any
notice or other communication in connection with this Warrant shall be deemed
to
be given if in writing (or in the form of a facsimile) addressed as hereinafter
provided and actually delivered at said address: (a) if to any Holder, at the
registered address of such holder as set forth in the Warrant Register kept
at
the office of the Company maintained pursuant to Section 8.2(a) hereof, or
(b)
if to the Company, to the attention of its Chief Financial Officer at its office
maintained pursuant to Section 8.2(a) hereof; provided,
however,
that
the exercise of any Warrant shall be effective in the manner provided in Section
3 hereof.
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12. Payment
of Taxes.
The
Company will pay all documentary stamp taxes attributable to the issuance of
shares of Common Stock underlying this Warrant upon exercise of this Warrant;
provided,
however,
that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the registration of any certificate for shares
of
Common Stock underlying this Warrant in a name other that of the Holder. The
Holder is responsible for all other tax liability that may arise as a result
of
holding or transferring this Warrant or receiving shares of Common Stock
underlying this Warrant upon exercise hereof.
13. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon thirty (30) days
notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Company or any new warrant agent may be merged or
any
corporation resulting from any consolidation to which the Company or any new
warrant agent shall be a party or any corporation to which the Company or any
new warrant agent transfers substantially all of its corporate trust or
stockholders services business shall be successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on
the Warrant Register.
14.
Miscellaneous.
This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought. This Warrant shall
be
construed and enforced in accordance with and governed by the laws of the State
of Nevada. The section headings in this Warrant are for purposes of convenience
only and shall not constitute a part hereof.
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IN
WITNESS WHEREOF, the Company has caused this Common Stock Purchase Warrant
to be
duly executed as of the date first above written.
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INC.
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By:
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Name:
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Title:
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9
EXHIBIT
A
PURCHASE
FORM
|
Dated:____________
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The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ___), hereby elects to purchase (check
applicable box):
_________
shares of the Common Stock of Enhance Skin Products Inc. covered by such
Warrant.
The
undersigned herewith makes payment of the full Warrant Price for such shares
at
the price per share provided for in such Warrant. Such payment takes the form
of
(check
applicable box or boxes):
$______
in lawful money of the United States.
________________________________________
Print
or
Type Name
________________________________________
(Signature
must conform in all respects to name of holder as specified on the face of
Warrant)
________________________________________
(Street
Address)
________________________________________
(City) (State) (Zip Code)
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