Contract
Exhibit
4.1
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, 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, _________________, 20__
Issue
Date:
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 _______________________
(_________) shares of the Common Stock, $0.001 par value, of the
Corporation (the “Common Stock”) from the Corporation
at the price per share shown below (the “Exercise
Price”).
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Holder:
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Exercise Price per
share:
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$4.75
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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.
3.
Method of Exercise; Fractional
Shares. 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) two (2) 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 attached hereto) and payment in cash or
by wire transfer of immediately available funds of an amount equal
to the Exercise Price multiplied by the number of shares of the
Common Stock being 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. 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
cash for the fractional share in an amount equal to the fraction so
issuable multiplied by the then fair market price for the shares of
Common Stock; or (b) issue scrip for the fraction in 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.
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 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. 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.
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5.
Adjustment for
Reorganization, Consolidation, Merger, Etc. 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”), the
Corporation shall give notice to the holder of this Warrant at
least five (5) days prior to the closing of such transaction (such
notice to be deemed given if publicly reported in a press release
or filing with the Securities and Exchange Commission) and the
Holder shall thereupon be entitled to receive 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.
6.
Notice of
Adjustment. Upon 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) 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 Section 5 above) is at any time
proposed, the Corporation shall give at least twenty (20) 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 twenty (20) 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.
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8.
Rights of Holder.
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 this 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 upon exercise of this Warrant have been registered
under the Securities Act of 1933, as amended, 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 the shares of
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 from Xxxxxx’s counsel as to
transfer without registration, the Corporation shall provide such
factual information to Xxxxxx’s counsel as Xxxxxx’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.
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.
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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.
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:
Title:
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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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Names
of Assignee
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Address
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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. The undersigned
tenders 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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