Contract
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED
AS PROVIDED IN SECTION 2
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____,
2008
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For
good and valuable consideration, the receipt of which is hereby acknowledged by
SKINNY NUTRITIONAL CORP., a Nevada corporation (the “Company”), ___________________________
(the “Holder”), is hereby granted the right to purchase, at any time from the
date that this Warrant is issued until 5:00 P.M., New York City time, on
_______, 2013 (the “Warrant Exercise Term”), up to _______________________
fully-paid and non-assessable shares of the Company's Common Stock, $.001 par
value per share (“Common Stock”).
l. Exercise of
Warrant
1.1 This Warrant is exercisable at
a per share price of $__ (the “Exercise Price”), subject to adjustment as
provided in Section l hereof, payable in cash or by certified or official bank
check in New York Clearing House funds. Upon surrender of this warrant
certificate with the annexed Subscription Form duly executed, together with
payment of the Exercise Price for the shares of Common Stock purchased at the
Company’s principal executive offices the registered Holder of the Warrant shall
be entitled to receive a certificate or certificates for the shares of Common
Stock so purchased (the “Warrant Shares”). The purchase rights represented by
this Warrant are exercisable at the option of the Holder hereof, in whole or in
part (but not as to fractional shares of the Common Stock) during any period in
which this Warrant may be exercised as set forth above. In the case
of the purchase of less than all the shares of Common Stock purchasable under
this Warrant, the Company shall cancel this Warrant upon the surrender thereof
and, upon the written request of the Holder, the Company shall execute and
deliver a new Warrant of like tenor for the balance of the shares of Common
Stock purchasable hereunder.
1.2 The issuance of certificates
for shares of Common Stock upon the exercise of this Warrant shall be made
without charge to the Holder hereof including, without limitation, any tax which
may be payable in respect of the issuance thereof, and such certificates shall
be issued in the name of, or in such names as may be directed by, the Holder
hereof; 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 issuance and
delivery of such certificate in a name other than that of the Holder and the
Company shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
1.3
Stock Dividends, Subdivisions,
Reclassifications or Combinations. If the Corporation shall
(A) declare a dividend or make a distribution on its Common Stock in shares of
its Common Stock, (B) subdivide or reclassify the outstanding shares of Common
Stock into a greater number of shares, or (C) combine or reclassify the
outstanding Common Stock into a smaller number of shares, the Exercise Price in
effect at the time of the record date for such dividend or distribution or the
effective date of such subdivision, combination or reclassification shall be
proportionately adjusted so that the Holder after such date shall be entitled to
receive the number of shares of Common Stock which he would have owned or been
entitled to receive had this Warrant been exercised immediately prior to such
date. Successive adjustments in the Exercise Price shall be made whenever any
event specified above shall occur.
1.4 Consolidation, Merger, Sale or
Conveyance. In case of any consolidation or merger of the
Company with any other corporation (other than a wholly owned subsidiary), or in
case of sale or transfer of all or substantially all of the assets of the
Company, or in the case of any share exchange whereby the Common Stock is
converted into other securities or property, the Company will be required to
make appropriate provision so that the Holder will have the right
thereafter to exercise this Warrant into the kind and amount of shares of stock
and other securities and property receivable upon such consolidation, merger,
sale, transfer or share exchange by a holder of the number of shares of Common
Stock for which this Warrant was exercisable immediately prior to such
consolidation, merger, sale, transfer or share exchange.
1.5
The Company covenants that it will at all times reserve and keep available out
of its authorized Common Stock, solely for the purpose of issuance upon exercise
of this Warrant as herein provided, such number of shares of Common Stock as
shall then be issuable upon the exercise of this Warrant. The Company
covenants that all shares of Common Stock which shall be so issuable shall be
duly and validly issued and fully-paid and non-assessable.
1.6 At
any time during the Warrant Exercise Term the Holder may effect a Cashless
Exercise by surrendering this Warrant to the Company and noting on the Exercise
Notice that the Holder wishes to effect a Cashless Exercise, upon which the
Company shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y x (A-B)/A
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where:
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X =
the number of Warrant Shares to be issued to the
Holder;
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Y =
the number of Warrant Shares with respect to which this Warrant is being
exercised;
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A =
the Market Price (as defined in below) as of the Exercise Date;
and
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B =
the Exercise Price.
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As used
herein, the term “Market
Price” means, as of a particular date, the average of the closing price
for the ten (10) consecutive trading days occurring immediately prior to (but
not including) such date, as reported in the principal market on which the
Company’s Common Stock is traded. For purposes of Rule 144, it is
intended and acknowledged that the Warrant Shares issued in a Cashless Exercise
transaction shall be deemed to have been acquired by the Holder, and the holding
period for the Warrant Shares required by Rule 144 shall be deemed to have been
commenced, on the date this Warrant was originally issued by the
Company.
2
2. Restrictions on
Transfer
The Holder acknowledges that he has
been advised by the Company that this Warrant and the shares of Common Stock
(the “Warrant Shares”) issuable upon exercise thereof (collectively the
“Securities”) have not been registered under the Securities Act of l933, as
amended (the “Securities Act”), that the Warrant is being issued, and the shares
issuable upon exercise of the Warrant will be issued, on the basis of the
statutory exemption provided by section 4(2) of the Securities Act relating to
transactions by an issuer not involving any public offering, and that the
Company's reliance upon this statutory exemption is based in part upon the
representations made by the Holder contained herein. The Holder
acknowledges that he has been informed by the Company of, or is otherwise
familiar with, the nature of the limitations imposed by the Securities Act and
the rules and regulations thereunder on the transfer of
securities. In particular, the Holder agrees that no sale, assignment
or transfer of the Securities shall be valid or effective, and the Company shall
not be required to give any effect to any such sale, assignment or transfer,
unless (i) the sale, assignment or transfer of the Securities is registered
under the Securities Act, and the Company has no obligations or intention to so
register the Securities except as may otherwise be provided herein, or (ii) the
Securities are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Securities Act or such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act. The Holder represents and warrants that he has
acquired this Warrant and will acquire the Securities for his own account for
investment and not with a view to the sale or distribution thereof or the
granting of any participation therein, and that he has no present intention of
distributing or selling to others any of such interest or granting any
participation therein. The Holder acknowledges that the securities
shall bear the following legend:
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“These
securities have not been registered under the Securities Act of
l933. Such securities may not be sold or offered for sale,
transferred, hypothecated or otherwise assigned in the absence of an
effective registration statement with respect thereto under such Act or an
opinion of counsel to the Company that an exemption from registration for
such sale, offer, transfer, hypothecation or other assignment is available
under such Act.”
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3.
Registration
Rights.
3.1 Piggyback Registration
Rights. The Company shall advise the Holder of this Warrant or
of the Warrant Shares or any then Holder of Warrants or Warrant Shares (such
persons being collectively referred to herein as "Holders") by written notice at
least 20 days prior to the filing by the Company with the Securities and
Exchange Commission of any other registration statement under the Securities Act
of l933 (the "Act") covering securities of the Company, except on Forms S-4 or
S-8 (or similar successor form), and upon the request of any such Holder within
ten days after the date of such notice, include in any such registration
statement such information as may be required to permit a public offering of the
Warrant Shares. The Company shall supply such number of prospectuses
and other documents as the Holder may reasonably request in order to facilitate
the public sale or other disposition of the Warrant Shares, qualify the Warrant
Shares for sale in such states as any such Holder reasonably designates and do
any and all other acts and things which may be necessary or desirable to enable
such Holders to consummate the public sale or other disposition of the Warrant
Shares, and furnish indemnification in the manner as set forth below. Such
Holders shall furnish information and indemnification as set forth
below. For the purpose of the foregoing, inclusion of the Warrant
Shares by the Holder in a Registration Statement under a condition that the
offer and/or sale of such Warrant Shares not commence until a date not to exceed
90 days from the effective date of such registration statement shall be deemed
to be in compliance with this sub-paragraph.
3
3.2 Procedures. The
foregoing registration rights shall be contingent on the Holders furnishing the
Company with such appropriate information (relating to the intentions of such
Holders) as the Company shall reasonably request in writing. Following the
effective date of such registration, the Company shall upon the request of any
owner of Warrants and/or Warrant Shares forthwith supply such number of
prospectuses meeting the requirements of the Act as shall be requested by such
owner to permit such Holder to make a public offering of all Warrant Shares from
time to time offered or sold to such Holder, provided that such Holder shall
from time to time furnish the Company with such appropriate information
(relating to the intentions of such Holder) as the Company shall request in
writing. The Company shall also use its best efforts to qualify the Warrant
Shares for sale in such states as such Holder shall reasonably designate. The
Company may withdraw the registration at any time.
3.3 Indemnity. The
Company shall indemnify and hold harmless each such Holder and each underwriter,
if any, within the meaning of the Act, who may purchase from or sell for any
such Holder any Warrant Shares from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post-effective amendment thereto or any registration statement under the Act or
any prospectus included therein required to be filed or furnished by reason of
this Section 3 or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information furnished or required to
be furnished in writing to the Company by such Holder or underwriter expressly
for use therein, which indemnification shall include each person, if any, who
controls any such underwriter within the meaning of such Act; provided, however,
that the Company shall not be obliged so to indemnify any such Holder or
underwriter or controlling person unless such Holder or underwriter shall at the
same time agree to indemnify the Company, its directors, each officer signing
the related registration statement and each person, if any, who controls the
Company within the meaning of such Act, from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or any
prospectus required to be filed or furnished by reason of this Section 3 or
caused by any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or alleged untrue statement or omission based upon information furnished in
writing to the Company by any such Holder or underwriter expressly for use
therein.
3.4 Registration Expenses. The Holder thereof shall
pay all transfer taxes, if any, relating to the sale of its shares, any
registration fees, underwriting discounts or commissions or the equivalent
thereof applicable to the sale of its shares and the fees of his own counsel.
Other than as described in the preceding sentence, the Company shall pay all
expenses incident to the registration of the Warrant Shares by the Company,
including, without limitation, all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, underwriting discounts,
fees and expenses (other than any Holder’s portion of any underwriting discounts
or commissions or the equivalent thereof), printing expenses, messenger and
delivery expenses, and reasonable fees and expenses of counsel for the Company
and the independent certified public accountants and other persons retained by
the Company.
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4.
Redemption.
4.1 The
Company may, subject to the conditions set forth herein, redeem some or all of
the Warrants then outstanding upon not less than thirty (30) days nor more than
sixty (60) days prior written notice to the Warrant Holders at any time, provided: (i)
this Warrant has been issued by the Company; (ii) the closing bid price of the
Company's Common Stock for each of the twenty (20) consecutive trading days
prior to the date of the notice of redemption is at least $1.50, as
proportionately adjusted to reflect any stock splits, stock dividends,
combination of shares or like events and (iii) all of the Warrant Shares have
been registered for resale and continue to be covered by an effective
and current registration statement with the Securities and Exchange
Commission. Notice will be effective upon mailing and the time of
mailing is the “Effective Date of the Notice”. The Notice will state a
redemption date not less than thirty (30) days nor more than sixty (60) days
from the Effective Date of the Notice (the “Redemption Date”). No Notice shall
be mailed unless all funds necessary to pay for redemption of the Warrants to be
redeemed shall have first been set aside by the Company for the benefit of the
Warrant Holders so as to be and continue to be available therefor. The
redemption price to be paid to the Warrant Holders will be $.10 for each share
of Common Stock of the Company to which the Warrant Holder would then be
entitled upon exercise of the Warrant being redeemed, as adjusted from time to
time as provided herein (the “Redemption Price”). The Warrant Holders may
exercise their Warrants between the Effective Date of the Notice and 5:00 p.m.
Eastern Time on the business day immediately prior to the Redemption Date, such
exercise being effective if done in accordance with Section 1 hereof, and if the
Warrant Certificate, with form of election to purchase duly executed and the
Warrant Price, as applicable for such Warrant subject to redemption for each
share of Common Stock to be purchased is actually received by the Company at its
principal offices prior to 5:00 p.m. Eastern Time on the business day
immediately prior to the Redemption Date.
4.2 If
any Warrant Holder does not wish to exercise any Warrant being redeemed, he
should mail such Warrant to the Company at its principal offices after receiving
the Notice of Redemption required by this Section 4. If such Notice of
Redemption shall have been so mailed, and if on or before the Effective Date of
the Notice all funds necessary to pay for redemption of the Warrants subject to
redemption shall have been set aside by the Company for the benefit of such
Warrant Holders, then, on and after said Redemption Date, notwithstanding that
any Warrant subject to redemption shall not have been surrendered for
redemption, the obligation evidenced by all Warrants not surrendered for
redemption or effectively exercised shall be deemed no longer outstanding, and
all rights with respect thereto shall forthwith cease and terminate, except only
the right of the holder of each Warrant subject to redemption to receive the
Redemption Price for each share of Common Stock to which he would be entitled if
he exercised the Warrant upon receiving notice of redemption of the Warrant
subject to redemption held by him.
5. Exchange and Replacement of
Warrant Certificates.
This
Warrant Certificate is exchangeable without expense, upon the surrender hereof
by the registered Holder at the principal executive office of the Company, for a
new Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Shares in such denominations as
shall be designated by the Holder thereof at the time of such
surrender.
5
Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it, and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Warrants, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu thereof and any such lost, stolen, destroyed
or mutilated warrant shall thereupon become void.
6.
Elimination of Fractional
Interests.
The Company shall not be required to
issue certificates representing fractions of the shares of Common Stock and
shall not be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up or down to the nearest whole
number of shares of Common Stock.
7. Rights of Warrant
Holders.
Nothing contained in this Agreement
shall be construed as conferring upon the Holder any rights whatsoever as a
stockholder of the Company, either at law or in equity, including without
limitation, or Holders the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors the right to receive dividends or any other matter.
8. Miscellaneous
8.1 All
the covenants and agreements made by the Company in this Warrant shall bind its
successors and assigns. This Warrant shall be for the sole and exclusive benefit
of the Holder and nothing in this Warrant shall be construed to confer upon any
person other than the Holder any legal or equitable right, remedy or claim
hereunder.
8.2 No
recourse shall be had for any claim based hereon or otherwise in any manner in
respect hereof, against any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor corporation,
whether by virtue of any constitutional provision or statute or rule of law, or
by the enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
8.3 No
course of dealing between the Company and the Holder hereof shall operate as a
waiver of any right of any Holder hereof, and no delay on the part of the Holder
in exercising any right hereunder shall so operate.
8.4 This
Warrant may be amended only by a written instrument executed by the Company and
the Holder hereof. Any amendment shall be endorsed upon this Warrant,
and all future Holders shall be bound thereby.
8.5 All
communications provided for herein shall be sent, except as may be otherwise
specifically provided, by registered or certified mail: if to the
Holder of this Warrant, to the address shown on the books of the Company; and if
to the Company, to Three Bala Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000,
attention: Office of the President, or to such other address as the Company may
advise the Holder of this Warrant in writing. Notices shall be deemed
given when mailed.
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8.6 The
provisions of this Warrant shall in all respects be constructed according to,
and the rights and liabilities of the parties hereto shall in all respects be
governed by, the laws of the State of New York. This Warrant shall be
deemed a contract made under the laws of the State of New York and the validity
of this Warrant and all rights and liabilities hereunder shall be determined
under the laws of said State.
8.7 The
headings of the Sections of this Warrant are inserted for convenience only and
shall not be deemed to constitute a part of this Warrant.
IN
WITNESS WHEREOF, SKINNY NUTRITIONAL CORP. has caused this Warrant to be executed
in its corporate name by its officer, and its seal to be affixed
hereto.
SUBSCRIPTION
FORM
Three
Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
The undersigned Holder hereby
irrevocably elects to exercise the right to purchase _____________________
shares of Common Stock covered by this Warrant according to the conditions
hereof and herewith makes full payment of the Exercise Price of such
shares.
Kindly deliver to the undersigned a
certificate representing the Shares.
INSTRUCTIONS
FOR DELIVERY
Name: ____________________________________________________________
(please typewrite or print in block
letters)
Address:
__________________________________________________________
Tax I.D.
No. or Social Security No.: ____________________________________
Dated:
_________________________
Signature
________________________________
STATE OF
___________)
COUNTY OF
_________) ss:
On this __ day of ___________, before
me personally came ________, to me known, who being by me duly sworn, did depose
and say that he resides at __________________, that he is the holder of the
foregoing instrument and that he executed such instrument and duly acknowledged
to me that he executed the same.
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Notary
Public
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[FORM OF
ASSIGNMENT]
(To be
executed by the registered holder if such holder
desires
to transfer the Warrant Certificate.)
FOR VALUE
RECEIVED ______________________ hereby sells, assigns and
transfers
unto_________________________________________________________________________
_______________________________________________________________________________________________________________________________________________________________________________
(Please
print name and address of transferee)
this
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ______________________, Attorney,
to transfer the within Warrant Certificate on the books of SKINNY NUTRITIONAL
CORP., with full power of substitution.
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Dated:
__________________
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Signature:
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(Signature
must conform in all respects
to
name of holder as specified on the
face
of the Warrant Certificate)
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(Insert
Social Security or Other
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Identifying
Number of Assignee)
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STATE OF
___________)
COUNTY OF
_________) ss:
On this __ day of ___________, before
me personally came ________, to me known, who being by me duly sworn, did depose
and say that he resides at __________________, that he is the holder of the
foregoing instrument and that he executed such instrument and duly acknowledged
to me that he executed the same.
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Notary
Public
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