EXHIBIT 99.21
THE WARRANTS AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND NEITHER THE
WARRANTS NOR THE SHARES NOR ANY INTEREST IN THE WARRANTS OR THE SHARES
MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER
AND UNDER APPLICABLE STATE LAW, THE AVAILABILITY OF WHICH MUST BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
CLASS A COMMON STOCK
WARRANT AGREEMENT
THIS CLASS A COMMON STOCK WARRANT AGREEMENT is made as of December 30,
1995 ("Effective Date") by VITAFORT INTERNATIONAL CORPORATION, a Delaware
corporation ("Company"), in favor of Xxxx Xxxxxxx ("Warrant Holder" or
"Holder").
WHEREAS, the Company issued and sold in a non-public offering
("Offering") pursuant to Section 4(2) of the Securities Act of 1933, as
amended ("Securities Act") approximately 42 Units ("Unit"), each Unit
consisting of 125,000 shares of the Company's Common Stock, $.0001 par value,
62,500 Class A Common Stock Purchase Warrants ("A Warrants") and 62,500 Class
B Common Stock Purchase Warrants ("B Warrants"). Each A Warrant and each B
Warrant entitles the holder to purchase one share of the Company's common
stock, $.0001 par value ("Common Stock"); and
WHEREAS, the Company has agreed to convert your deferred fees (or
wages) into equity at the same rates and terms as the offering; and
WHEREAS, the Company deems it to be in the best interests of the
Warrant Holder that the Company establish the terms and conditions upon which
the Warrants may be issued, exercised and redeemed, and other matters as
provided herein.
NOW THEREFORE, to establish the terms and conditions of the Warrants,
and the rights and obligations of the Company and the Warrant Holder with
respect thereto, the Company hereby provides as follows:
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Section 1. CERTIFICATION. For value received, the Warrant Holder or
its registered assign ("Holder") is entitled to purchase from the Company,
subject to the provisions of this Warrant Agreement, fully paid, validly
issued and nonassessable shares of the Company's Common Stock at the Exercise
Price (as defined herein) commencing one year after a registration statement
covering the Warrant Shares (as defined herein) under the Securities Act is
declared effective by the Securities and Exchange Commission ("Effective
Registration Date"), and terminating at 5:00 P.M. Los Angeles time 15 months
thereafter. The number of shares of Common Stock to be received upon the
exercise of the Warrant and the price to be paid for each share of Common
Stock may be adjusted from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as "Warrant Shares."
Section 2. FORM OF WARRANT. The text of the Warrant and of the
Purchase Form shall be substantially as set forth in Exhibit A attached
hereto (collectively, the "Warrant Certificates"). The Exercise Price (as
defined in Section 8) and the number of shares issuable upon exercise of each
Warrant are subject to adjustment upon the occurrence of certain events, all
as hereinafter provided. The Warrant Certificates shall be executed on
behalf of the Company by its Chairman of the Board, President or one of its
Vice Presidents, and attested to by its Secretary or an Assistant Secretary.
The signature of any of such officers on the Warrant Certificates may be
manual or facsimile. Warrant Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any
one of them shall have ceased to hold such offices prior to the delivery of
such Warrant Certificates or did not hold such offices on the date of this
Agreement.
Section 3. EXCHANGE OF WARRANT CERTIFICATES. Each Warrant
Certificate may be exchanged for another Certificate entitling the Holder
thereof to purchase a like aggregate number of shares as the Certificate
surrendered then entitled such Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate shall make such request in writing delivered
to the Company, and shall surrender, properly endorsed, the Certificate to be
so exchanged. Thereupon, the Company shall countersign and deliver to the
person entitled thereto a new Warrant Certificate as requested.
Section 4. TERM OF WARRANTS; EXERCISE OF WARRANTS.
4.1 TERM OF WARRANTS. Subject to the terms of
this Agreement, each Holder shall have the right, which may be exercised
commencing on the Effective Registration Date and terminating at 5:00 PM. Los
Angeles time 15 months thereafter, to purchase from the Company the number of
fully paid and nonassessable shares which the Holder may at the time be
entitled to purchase on exercise of such Warrants.
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4.2 EXERCISE OF WARRANTS. A Warrant may be
exercised upon surrender to the Company ("Warrant Agent") at its office at
Los Angeles, California of the Certificate evidencing the Warrant to be
exercised, together with the Purchase Form attached hereto as Exhibit A, duly
filled in and signed, and upon payment to the Warrant Agent of the Aggregate
Exercise Price (as defined in and determined in accordance with the
provisions of Sections 8 and 11 hereof) for the number of shares with respect
to which such Warrant is then exercised. Payment of the Aggregate Exercise
Price shall be made in cash or by check. Subject to Section 4 hereof, upon
the surrender of the Warrant and payment of the Aggregate Exercise Price, the
Warrant Agent shall promptly issue and cause to be delivered to or as
directed by the Holder, and in such name or names as the Holder may
designate, a Certificate for the number of full shares purchased upon the
exercise of the Warrant, together with cash as provided in Section 8 hereof;
for any fractional shares otherwise issuable upon such exercise. Such
Certificate shall be deemed to have been issued, and any person so designated
to be named therein shall be deemed to have become a holder of record of such
shares, as of the date of the surrender of such Warrant and payment of the
Aggregate Exercise Price; provided, however, that if, at the date of
surrender of such Warrant and payment of such Aggregate Exercise Price, the
transfer books for the shares or other class of stock purchasable upon the
exercise of such Warrant shall be closed, the certificates for the shares
with respect to which such Warrant is then exercised shall be issuable as of
the date on which such books shall next be opened and until such date the
Company shall be under no duty to deliver any certificate for such shares;
provided further, however, that the transfer books of record, unless
otherwise required by law, shall not be closed at any one time for a period
longer than twenty (20) days. The rights of purchase represented by the
Warrants shall be exercisable, at the election of the Holders thereof, either
in full or from time to time in part, and in the event that a Warrant
Certificate is exercised to purchase less than all of the shares purchasable
on such exercise at any time prior to the date of expiration of the Warrants,
a new Certificate evidencing the remaining shares available for purchase will
be issued, and the Company is hereby irrevocably authorized to sign and to
deliver the new Warrant Certificate.
Section 5. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes, if any, attributable to the initial issuance of shares upon the
exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable with respect to any
transfer involved in the issue or delivery of any Warrants or certificates
for shares in a name other than that of the registered Holder of Warrants
with respect to which such shares are issued.
Section 6. MUTILATED OR MISSING WARRANTS. In case any Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company may in
its discretion issue, and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate mutilated, lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent right or interest; but only upon receipt of evidence to the
reasonable satisfaction of the Company of such mutilation, loss, theft or
destruction of such Certificate and indemnity, if requested, also to the
reasonable satisfaction
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of the Company. An applicant for such a substitute Warrant Certificate shall
also comply with such other reasonable regulations and pay such other
reasonable charges as the Company may prescribe.
Section 7. RESERVATION OF SHARES; PURCHASE OF WARRANTS; CALL OF WARRANTS.
7.1 RESERVATION OF SHARES. There have been
reserved, and the Company shall at all times keep reserved, out of its
authorized Common Stock, a number of shares of Common Stock sufficient to
provide for the exercise of the rights of purchase represented by the
outstanding Warrants.
7.2 PURCHASE OF WARRANTS BY THE COMPANY. The
Company shall have the right, except as limited by law, other agreement or
herein, to purchase or otherwise acquire Warrants at such times, in such
manner and for such consideration as it may deem appropriate.
7.3 CALL OF WARRANTS BY COMPANY. The Company may
issue a call of this Warrant ("Call Notice") at any time after the Effective
Registration Date, but prior to the expiration of this Warrant, by written
notice to Warrant Holder, provided only that the Closing Price (hereinafter
defined) of the Company's Common Stock has theretofore equalled or exceeded
Thirty-Three and three-fourths Cents ($0.3375) per Share for ten (10)
consecutive Trading Days after the Effective Registration Date. This Warrant
shall expire and become null and void thirty (30) days after the issuance of
the Call Notice. The Warrant Holder may exercise this Warrant and purchase
some or all of the Shares then subject to this Warrant within said thirty
(30)-day period, but may not thereafter exercise this Warrant or purchase any
of the Shares. If the Warrant is not exercised within said thirty (30) day
period, the Company will have the right to redeem any or all outstanding and
unexercised Warrants at a redemption price of $0.0001 per Warrant. For
purposes of this Section 7.3, "Closing Price" means (a) if the Common Stock
is then listed on an established stock exchange or exchanges, the average bid
and ask price per share for each Trading Day on the principal exchange on
which the Common Stock is traded, as reported in The Wall Street Journal; or
(b) if the Common Stock is not then listed on an exchange, the price per
share for the Common Stock in the over-the-counter market as quoted on NASDAQ
(either National Market System or Small Cap Issues or the OTC Electronic
Bulletin Board), for each Trading Day, as reported in The Wall Street
Journal. If the Common Stock is not then listed on an exchange or quoted on
NASDAQ or the OTC Electronic Bulletin Board, the Common Stock shall be deemed
to have a Closing Price of less than Thirty-Three and three-fourths Cents
($0.3375) per share on such Trading Day. For purposes of this Section 7.3,
the term "Trading Day" shall mean a day on which the New York Stock Exchange
is open for trading.
Section 8. EXERCISE PRICE. The price per share at which shares may
be purchased upon exercise of Warrants in effect at any time, and as adjusted
from time to time as provided in Section 11 of this Agreement, is referred to
herein as the "Exercise Price." Subject to adjustment,the Exercise Price
shall be $0.225 per share. The product of the Exercise Price times the
number of shares the Holder then elects to purchase is herein referred to as
the "Aggregate Exercise Price."
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Section 9. FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise of a Warrant.
Section 10. RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at
law or in equity, and the rights of the Holder are limited to those expressed
herein and in the Warrant Certificate and are not enforceable against the
Company except to the extent set forth herein and therein.
Section 11. ADJUSTMENT OF WARRANT AND NUMBER OF SHARES. The
number and kind of securities purchasable upon the exercise of each Warrant
and the Exercise Price shall be subject to adjustment from time to time upon
the happening of certain events, as hereinafter described.
11.1 MECHANICAL ADJUSTMENTS. If the
Company shall pay a dividend in shares of its Common Stock (other than
payments of Common Stock as interest on preferred stock), subdivide (split)
its outstanding shares of Common Stock, combine (reverse split) its
outstanding shares of Common Stock, issue by reclassification of its shares
of Common Stock any shares or other securities of the Company, or distribute
as a stock dividend to holders of its Common Stock any securities of the
Company or of another entity, the number of shares of Common Stock or other
securities the Holder hereof is entitled to purchase pursuant to the Warrants
immediately prior thereto shall be adjusted so that the Holder shall be
entitled to receive upon exercise the number of shares of Common Stock or
other securities which he, she or it would have owned or would have been
entitled to receive after the happening of any of the events described above
had the Warrant been exercised immediately prior to the happening of such
event, and the Exercise Price shall be correspondingly adjusted; provided,
however, that no adjustment in the number of shares and/or the Exercise Price
shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in such number and/or price; and
provided further, however, that any adjustments which by reason of this
Section 11 are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. An adjustment made pursuant to
this Section 11 shall become effective immediately after the record date in
the case of a stock dividend or other distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification. The Holder shall be entitled to participate
in any subscription or other rights offering made to holders of Common Stock
as if he, she or it had purchased the full number of shares as to which the
Warrant remains unexercised immediately prior to the record date for such
rights offering.
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11.2 VOLUNTARY ADJUSTMENT BY THE COMPANY.
The Company may at its option at any time during the term of the Warrants,
reduce the then current Exercise Price to any amount deemed appropriate by
the Board of Directors of the Company.
11.3 NOTICE OF ADJUSTMENT. Whenever the
number of shares purchasable upon the exercise of each Warrant or the
Exercise Price of such shares is adjusted, as herein provided, the Company
shall mail by first class mail, postage prepaid, to each Holder notice of
such adjustment or adjustments.
11.4 NO ADJUSTMENT FOR DIVIDENDS. Except
as provided in subsection 11.1, no adjustment in respect of any dividends
shall be made during the term of a Warrant or upon the exercise of a Warrant.
11.5 PRESERVATION OF PURCHASE RIGHTS UPON
RECLASSIFICATION, CONSOLIDATION, ETC. In case of any consolidation of the
Company with or merger of the Company into another corporation or in case of
any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the Company or such successor
or purchasing corporation, as the case may be, shall execute an agreement
that each Holder shall have the right thereafter upon payment of the Warrant
Price in effect immediately prior to such action to purchase upon exercise of
each Warrant the kind and amount of shares and other securities and property
which he, she or it would have owned or have been entitled to receive after
the happening of such consolidation, merger, sale or conveyance had such
Warrant been exercised immediately prior to such action. The Company shall
mail by first class mail, postage prepaid, to each Holder, notice of the
execution of any such agreement. Such agreement shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 11. The provisions of this subsection 11.5
shall similarly apply to successive consolidations, mergers, sales or
conveyances.
11.6 STATEMENT ON WARRANTS. Irrespective
of any adjustments in the Exercise Price or the number or kind of shares
purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind
of shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
Section 12. SURVIVAL OF AGREEMENT. This Agreement and the rights
and obligations of the Company and the Warrant Holders hereunder shall not be
terminated by any of the following events:
Merger, reorganization or consolidation of the Company;
The transfer of all or substantially all of the assets of Company; or
The voluntary or involuntary dissolution of the Company.
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In the event of any such merger, reorganization, consolidation or transfer of
assets, the surviving or resulting corporation or transferee of the assets of
the party affected shall be bound by and shall have the benefit of the
provisions of this Agreement, and the party affected shall take all actions
necessary to insure that such corporation or transferee is bound by the
provisions of this Agreement.
Section 13. RESTRICTIONS ON TRANSFER. The provisions of this
Section 13 shall be binding upon any transferee of the Warrants and upon each
holder of Warrant Shares. As used in this Section 13, the term "Warrant
Shares" includes any shares of the Company's Common Stock or other
securities, issued in respect of the Warrant Shares pursuant to any stock
split, stock dividend, recapitalization or otherwise; and the term "Warrant"
includes any Warrant Certificate or Certificates issued in exchange for the
original Warrant Certificate.
13.1 RESTRICTED SECURITIES. The Warrants
and Warrant Shares have not been registered under the Securities Act of 1933,
as amended, ("Securities Act") or the securities laws of any states and will
be offered and sold in reliance on exemptions from the registration
requirement of such laws. The Warrants and Warrant Shares are deemed to be
"restricted securities" as that term is defined under Rule 144 promulgated
under the Securities Act, because the Warrants will be issued and sold by the
Company in private transactions not involving a public offering. In general,
under Rule 144 as currently in effect, subject to the satisfaction of certain
other conditions, a person, including an affiliate of the Company (or persons
whose shares are aggregated), who has owned restricted shares of Common Stock
beneficially for at least two years is entitled to sell, within any
three-month period, a number of shares that does not exceed the greater of 1%
of the total number of outstanding shares of the same class or, if the Common
Stock is quoted on NASDAQ, the average weekly trading volume during the four
calendar weeks preceding the sale. A person who has held the securities for
at least three years and who has not been an affiliate of the Company for at
least three months immediately prior to a proposed sale is entitled to sell
such shares under Rule 144 without regard to any of the limitations described
above.
13.2 LEGEND RESTRICTION. The Company shall
cause the following legend to be set forth on each Warrant Certificate and
certificates representing the Warrant Shares unless counsel for the Company
is of the opinion as to any such certificates that such legend is unnecessary:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR PURSUANT
TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND UNDER APPLICABLE
STATE LAW, THE AVAILABILITY OF WHICH MUST BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
13.3 NOTICE OF PROPOSED TRANSFER. Prior to
any proposed transfer of the Warrants or of the Warrant Shares, the Holder
thereof shall give written notice to the Company stating such Holder's
intention to effect such transfer and describing the circumstances of the
proposed transfer in sufficient detail, accompanied by either (i) an opinion
of counsel reasonably satisfactory to the Company to the effect that the
proposed transfer may be effected without registration under the Securities
Act, or (ii) a "no action" letter from the staff of the Securities and
Exchange Commission ("Commission") to the effect that the staff will not
recommend that enforcement action be taken if the proposed transfer is
effected without registration. Subject to evidence of compliance with any
applicable state securities or "blue sky" law or laws, the Company shall
promptly notify the Holder in writing that such Holder may proceed with its
transfer as described, and, if the transfer is of Warrant Shares, shall
instruct its transfer agent to remove any stop-transfer restrictions against
the Warrant Shares when transferred as proposed.
Section 14. INDEMNIFICATION.
14.1 The Company will indemnify each
Holder, each of its officers, directors and partners, legal counsel, and
accountants and each person controlling such Holder within the meaning of
Section 18 of the Securities Act, with respect to which registration,
qualification, or compliance has been effected pursuant to this Agreement,
and each underwriter, if any, and each person who controls within the meaning
of Section 18 of the Securities Act any underwriter, against all expenses,
claims, losses, damages, and liabilities (or actions, proceedings, or
settlements in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
prospectus, offering circular, or other document (including any related
registration statement, notification, or the like) incident to any such
registration, qualification or compliance, or based on 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, or any
violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification, or compliance, and will reimburse each such Holder, each of
its officers, directors, partners, legal counsel, and
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accountants and each person controlling such Holder, each such underwriter,
and each person who controls any such underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability, or action,
provided that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability, or expense arises out of or is
based on any untrue statement or omission in reliance upon written
information furnished to the Company by such Holder or underwriter and stated
to be specifically for use therein. It is agreed that the indemnity
agreement contained in this Section 16.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent has
not been unreasonably withheld).
14.2 Each Holder will, if Warrant Shares
held by him, her or it are included in the securities as to which such
registration, qualification, or compliance is being effected, indemnify the
Company, each of its directors, officers, partners, legal counsel, and
accountants and each underwriter, if any, of the Company's securities covered
by such a registration statement, each person who controls the Company or
such underwriter within the meaning of Section 18 of the Securities Act, each
other such Holder and Other Stockholder, and each of their officers,
directors, and partners, and each person controlling such Holder or Other
Stockholder, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular, or other document, or
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, and will reimburse the Company and such Holders, Other
Stockholders, directors, officers, partners, legal counsel, and accountants,
persons, underwriters, or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder
and stated to be specifically for use therein provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld); and provided that
in no event shall any indemnity under this Section 16 exceed the gross
proceeds from the offering received by such Holder.
14.3 Each party entitled to indemnification
under this Section 16 ("Indemnified Party") shall give notice to the party
required to provide indemnification ("Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
the
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defense of such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense of such
claim or any litigation resulting therefor, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and
the Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 16, to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement that does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
14.4 If the indemnification provided for in
this Section 16 is held by a court of competent jurisdiction to be
unavailable to an Indemnified Party with respect to any loss, liability,
claim, damage, or expense referred to therein, then the Indemnifying Party,
in lieu of indemnifying such Indemnified Party hereunder, shall contribute to
the amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statement or omissions that resulted in such loss, liability, claim, damage,
or expense as well as any other relevant equitable considerations; provided,
however that in no event shall any contribution by a Holder under this
Section 16.4 exceed the gross proceeds from the offering received from such
Holder. The relative fault of the Indemnifying Party and of the Indemnified
Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
14.5 Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the provisions
in the underwriting agreement shall control.
Section 15. RULE 144 REPORTING. With a view to making available the
benefits of certain provisions of the Securities Act or the rules and
regulations of the Commission that may permit the sale of the restricted
securities to the public without registration, the Company agrees to use its
best efforts to:
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(a) Make and keep public information regarding the
Company available as those terms are understood and defined in Rule 144 under
the Securities Act; and
(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Securities Exchange Act of 1934 at any time after it has become
subject to such reporting requirements.
Section 16. DELAY OF REGISTRATION. No Holder shall have any right to
take any action to restrain, enjoin, or otherwise delay any registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
Section 17. SUPPLEMENTS AND AMENDMENTS. The Company may from time to
time supplement or amend this Agreement, without the approval of any Holder,
in order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company may deem necessary or desirable
and which shall not be inconsistent with the provisions of the Warrants and
which shall not adversely affect the interest of the Holders, or as provided
herein. The Company will notify Warrant Holder of any such supplement or
amendment.
Section 18. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company and the Warrant Holder shall
bind and inure to the benefit of the Company and the Warrant Holders, and
their respective successors and assigns.
Section 19. NOTICES. Any notice pursuant to this Agreement by any
Holder to the Company, shall be in writing and shall be mailed or delivered
to the Company at its office at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000. Any notice mailed pursuant to this Agreement by
the Company to the Holders shall be in writing and shall be mailed or
delivered to such Holders at their respective addresses on the books of the
Warrant Agent. Each party hereto may from time to time change the address to
which notices to it are to be delivered or mailed hereunder by notice in
writing to the other party.
Section 20. MERGER OR CONSOLIDATION OF THE COMPANY. The Company will
not merge or consolidate with or into any other corporation unless the
corporation resulting from such merger or consolidation (if not the Company)
shall expressly assume, by supplemental agreement satisfactory in form to the
Warrant Agent and executed and delivered to the Company, the due and punctual
performance and observance of each and every covenant and condition of this
Agreement to be performed and observed by the Company.
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Section 21. APPLICABLE LAW. This Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the laws of
the State of Delaware, without giving effect to principles of conflict of
laws.
Section 22. BENEFITS TO THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company and the Warrant Holders any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, and the Holders of the Warrants.
Section 23. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first above written.
VITAFORT INTERNATIONAL CORPORATION
a Delaware Corporation
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx
Acting Chief Financial Officer
Accepted as of the date written above:
WARRANT HOLDER
Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxxxx
------------------------
Its: ------------------------
By: ------------------------
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CERTIFICATE NO. VBS-2A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND
UNDER APPLICABLE STATE LAW, THE AVAILABILITY OF WHICH MUST BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
CLASS A COMMON STOCK WARRANT
TO PURCHASE 190,921 SHARES OF COMMON STOCK OF
VITAFORT INTERNATIONAL CORPORATION
A Delaware Corporation
THIS CERTIFIES that, for value received, Xxxx Xxxxxxx or registered
assigns ("Holder"), is entitled to purchase from VITAFORT INTERNATIONAL
CORPORATION, INC. a Delaware corporation, ("Company"), up to One Hundred
Ninety Thousand Nine Hundred Twenty-One (190,921), fully paid and
nonassessable shares of common stock of the Company ("Common Stock"), at any
time commencing one year after a registration statement covering the Warrant
Shares (as defined in the Warrant Agreement referred to herein) under the
Securities Act of 1933, as amended, has been declared effective by the
Securities and Exchange Commission and terminating at 5:00 P.M. Los Angeles
time 15 months thereafter, at the purchase price of $0.225 per share
("Exercise Price") (pending adjustment), as provided in Section 1 of a the
Warrant Agreement. This Warrant is issued pursuant to the Warrant Agreement
made by the Company dated November 30, 1995 in favor of all Warrant Holders
("Warrant Agreement") and is subject to all the terms thereof, including the
limitations on transferability set forth in Section 13 thereof. The Holder
accepts the terms and provisions of the Warrant Agreement by acceptance of
this Warrant Certificate, and acknowledges receipt thereof.
The number of shares purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as set forth
in the Warrant Agreement.
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This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form on the last page hereof duly executed,
concurrently with payment of the Aggregate Exercise Price (as defined in
Section 8 of the Warrant Agreement) at the office of the Company ("Warrant
Agent"). Payment of the Aggregate Exercise Price shall be made at the option
of the Holder in cash or by check.
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder a new Warrant in respect of the shares
of Common Stock as to which this Warrant shall not have been exercised. This
Warrant may be exchanged at the office of the Warrant Agent by surrender of
this Warrant Certificate, properly endorsed either separately or in
combination with one or more other Warrants, for one or more new Warrants
entitling the Holder thereof to purchase the same aggregate number of shares
as were purchased on exercise of the Warrant or Warrants exchanged. No
fractional shares will be issued upon the exercise of this Warrant, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. This Warrant is transferable at the office of the Warrant
Agent, in the manner and subject to the limitations set forth in the Warrant
Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent,
and all other persons dealing with this Warrant, as the absolute owner hereof
for any purpose and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the books of the Company, any notice to
the contrary notwithstanding, and until such transfer on such books, the
Company may treat the Holder hereof as the owner for all purposes.
This Warrant does not entitle any Holder hereof to any of the rights
of a stockholder of the Company.
This Warrant shall not be valid or obligatory for any purpose until it
shall have been signed by the Company.
DATED: December 30, 1995 VITAFORT INTERNATIONAL CORPORATION
a Delaware corporation
/s/ XXXX XXXXX
----------------------------------
Xxxx Xxxxx
Acting Chief Financial Officer
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Exhibit "A"
PURCHASE FORM
Dated ______________________
The undersigned hereby irrevocably elects to exercise the Warrant represented
by this Warrant Certificate No. VBS-2A to the extent of purchasing __________
shares of Common Stock of VITAFORT INTERNATIONAL CORPORATION and hereby makes
the payment of $_____________ in payment of the Aggregate Exercise Price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: ____________________________________________________________________
(please type or print in block letters)
Address: ____________________________________________________________________
Signature: ____________________________________________________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, __________________________________, hereby sells, assigns
and transfers unto
Name: ____________________________________________________________________
Address: ____________________________________________________________________
the right to purchase Common Stock of VITAFORT INTERNATIONAL CORPORATION
represented by this Warrant Certificate No. VBS-2A to the extent of ______
shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint _________________, Attorney, to transfer the same on
the books of the Company with full power of substitution.
Date: ________________________
Signature: ________________________
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