WARRANT AGREEMENT
WARRANT
AGREEMENT (the "Warrant Agreement"), dated as of _________________________
(the
"Effective Date"), by and among Herborium Group, Inc., a Nevada corporation
(the
"Company"), and the investors signatory hereto (collectively, the `Warrant
holders" and each, a "Warrant holder").
Each
of
the Warrant holders has executed a subscription agreement (each, a "Subscription
Agreement") for the purchase of Units (as defined therein) consisting of a
convertible note (the "Convertible Note"), shares of the Company’s common stock,
par value $.001 (the “Common Stock”) and warrants to purchase shares of the
Common Stock. This Warrant Agreement is being executed in connection with the
purchase of the Units.
Capitalized
terms used herein but not otherwise defined shall have the meanings ascribed
to
them in the Subscription Agreement. In addition, certain capitalized terms
used
herein are defined in Paragraph 13.
In
consideration of the parties mutual covenants and agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Issuance
of Warrant.
(a) The
Company hereby issues and grants to each Warrant holder warrants (a "Warrant")
to purchase a number of shares of Common Stock in an amount equal to the product
obtained by multiplying (x) the number of Units (as such term is defined in
the
Subscription Agreement) by such Warrant holder by 100,000. The Common Stock
issuable upon exercise of the Warrants being collectively referred to herein
as
the "Warrant Shares." Each Warrant shall entitle the holder thereof, subject
to
the satisfaction of the conditions to exercise set forth in Paragraph 7 of
this
Warrant Agreement, to purchase, on or prior to 5:00 p.m., New York City time,
on
______________2013 (the "Warrant Expiration Date") that number of Warrant Shares
equal to the quotient obtained by multiplying one (1) by the number of Warrants
granted pursuant hereto. If not sooner expired pursuant to the terms hereof,
the
Warrants, and any and all rights of exercise thereof, shall expire on the
Warrant Expiration Date, the Warrant Shares issuable under this Warrant
Agreement and the Exercise Price are subject to adjustment pursuant to Paragraph
8 of this Warrant Agreement.
(b) Subject
to the adjustments contained in Paragraph 8, the "Exercise Price" per Warrant
Share for each 100,000 Warrant Shares shall be 50,000 Warrant Shares at two
and
a half cents ($0.025) and 50,000 Warrant Shares at five cents
($0.05).
2. Form
of Warrant Certificates.
Within
twenty one (21) business days after the Closing (as defined in the Subscription
Agreement), with respect to each respective Warrant holder, the Company shall
cause to be executed and delivered to such Warrant holder one or more
certificates evidencing the Warrants (the "Warrant Certificates") to which
such
Warrant holder is entitled. Each Warrant Certificate delivered hereunder shall
be substantially in the form set forth in Exhibit 2 attached hereto and may
have
such letters, numbers or other identification marks and legends, summaries
or
endorsements printed thereon as the Company may deem appropriate (provided
same
are not inconsistent with the terms of this Warrant Agreement) or as may be
required by applicable law, rule or regulation. Each Warrant Certificate shall
be dated as of the Effective Date (first defined above).
3. Execution
of Warrant Certificates.
Each
Warrant Certificate delivered hereunder shall be signed on behalf of the Company
by one (1) officer of the Company. Each such signature may be in the form of
a
facsimile thereof and may be imprinted or otherwise reproduced on the Warrant
Certificates.
(a) If
any
officer of the Company who signed any Warrant Certificate ceases to be an
officer of the Company before the Warrant Certificate so signed shall have
been
delivered by the Company, such Warrant Certificate nevertheless may be delivered
as though such person had not ceased to be an officer of the
Company.
4. Registration.
Warrant
Certificates shall be issued in registered form only. The Company will keep
or
cause to be kept books for registration of ownership and transfer of each
Warrant Certificate issued pursuant to this Warrant Agreement. Each Warrant
Certificate issued pursuant to this Warrant Agreement shall be numbered by
the
Company and shall be registered by the Company in the name of the holder thereof
(initially, the Warrant holder). The Company may deem and treat the registered
holder of any Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone) for the
purpose of any exercise thereof and for all other purposes, and the Company
shall not be affected by any notice to the contrary.
5.
Transfers
and Exchanges.
(a)
Transfers. Subject to the provisions of this Paragraph 5, the Warrants are
transferable, in whole or in part, upon surrender of the Warrant Certificates
evidencing such Warrants at the office of the Company, together with a written
assignment in the form of the assignment appearing at the end of the form of
Warrant Certificate attached hereto as Exhibit 2, duly executed by the
registered holder thereof or its agent or attorney. Upon such surrender, the
Company shall, subject to this Paragraph 5, register or cause the registration
of the transfer upon the books maintained by or on behalf of the Company for
such purpose. If the Warrants evidenced by any Warrant Certificate are to be
transferred in whole, the Company shall execute and deliver a new Warrant
Certificate or Warrant Certificates in the name of the assignee or assignees
in
the denominations specified in the instrument of assignment. If the Warrants
evidenced by any Warrant Certificate are to be transferred in part, the Company
shall execute and deliver a new Warrant Certificate or Warrant Certificates
to
and in the name of the assignee or assignees in the denominations specified
in
the instrument of assignment and a new Warrant Certificate to and in the name
of
the assigning holder in an amount equal to the number of Warrants evidenced
by
the surrendered Warrant Certificate that were not transferred.
(b)
Restrictions on Transfer. No Warrant may be sold, pledged, hypothecated,
assigned, conveyed, transferred or otherwise disposed of (each, a "transfer")
without prior written consent by the Company and unless the transferee agrees
in
writing to be bound by the terms of this Warrant Agreement.
(c)
Exchanges. Warrant Certificates may be exchanged, at the option of the holder
thereof, upon surrender of such Warrant Certificate at the office of the
Company, for one or more other Warrant Certificates of like tenor and
representing in the aggregate the same number of Warrants as was represented
by
the surrendered Warrant Certificate.
(d)
Cancellation. Warrant Certificates surrendered for transfer or exchange shall
be
canceled by the Company.
6. Mutilated
or Missing Warrant Certificates.
If any
Warrant Certificate is mutilated, lost, stolen or destroyed, the Company shall
issue, upon surrender and cancellation of any mutilated Warrant Certificate,
or
in lieu of and substitution for any lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor and representing an equal
number of Warrants. In the case of a lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate shall be issued by the Company only
upon
the Company's receipt of reasonably satisfactory evidence of such loss, theft
or
destruction and, if requested, an indemnity or bond reasonably satisfactory
to
the Company.
7. Exercise
of Warrants.
(a) Exercise.
Subject to the terms and conditions set forth in this Paragraph 7, at any time
and from time to time prior to the Warrant Expiration Date the Warrants may
be
exercised for that number of Warrant Shares as may be determined appropriate
by
the Warrant holder. Should a Warrant holder fail to exercise this Warrant in
full prior to the Warrant Expiration Date, then the entitlement of such Warrant
holder to the Warrant Shares shall be automatically cancelled and void. In
order
to exercise the Warrants, a Warrant holder shall deliver to the Company the
following: (i) a written notice, in the form of the Election to Purchase
appearing at the end of the form of Warrant Certificate attached hereto,
indicating the election of such Warrant holder to exercise the Warrants for
all
or such portion of the Warrant Shares as identified by the Warrant holder
therein; (ii) the Warrant Certificate or Warrant Certificates evidencing the
Warrants being exercised; and (iii) payment of the aggregate Exercise
Price.
(b) Payment
of Exercise Price. Payment of the Exercise Price with respect to that portion
of
the Warrants being exercised hereunder shall be made by the payment by the
Warrant holder to the Company, in cash, by cashier's check or wire transfer,
of
an amount equal to the Exercise Price multiplied by the number of Warrant Shares
being acquired by the exercise of the Warrants.
(c) Payment
of Taxes. The Company shall be responsible for paying any and all issue,
documentary, stamp or other taxes that may be payable in respect of any issuance
or delivery of Warrant Shares on exercise of the Warrants, except in the case
where any Warrant Shares shall be registered in a name or names other than
the
name of the holder of a Warrant. In the event that Warrant Shares shall be
registered in a name or names other than the name of the holder of a Warrant,
funds sufficient to pay all transfer taxes, if any, which shall be payable
upon
the execution and delivery of such Warrant Shares shall be paid by the holder
thereof to the Company at the time a Warrant holder delivers such Warrants
to
the Company for exercise.
(d)
Delivery of Warrant Shares. Upon receipt of the items referred to in Paragraph
7. (a), the Company shall, as promptly as practicable, and in any event within
three (3) Business Days thereafter, execute and deliver or cause to be executed
and delivered, to or upon the written order of the Warrantholder exercising
the
Warrants, and in the name of such Warrantholder or such designee of such
Warrantholder, a share certificate or share certificates representing the number
of Warrant Shares to be issued
on
exercise of the Warrants and enter full details of such issuance in the stock
register of the Company in order to confer upon the Warrantholder or the
designee of such Warrant holder legal
title thereto. The share certificate or share certificates issued to such
Warrantholder or its designee shall bear any restrictive legend required under
applicable law, rule or regulation. The share certificate or share certificates
so delivered (and the entry in the stock register) shall be registered or made,
as the case may be, in the name of such Warrantholder or such other name as
shall be designated in said notice. A Warrant shall be deemed to have been
exercised and such share certificate or share certificates shall be deemed
to
have been issued, and such holder or any other person so designated to be named
therein shall be deemed to have become a holder of record of such shares for
all
purposes, as of the date that such notice, together with payment of the
aggregate Exercise Price and the Warrant Certificate or Warrant Certificates
evidencing the Warrants to be exercised, is received by the Company as aforesaid
and the corresponding entries are made in the stock register of the Company.
If
the Warrants evidenced by any Warrant Certificate are exercised in part, the
Company shall, at the time of delivery of the share certificate or share
certificates, deliver to the holder thereof a new Warrant Certificate evidencing
the Warrants that were not exercised or surrendered, which shall in all respects
(other than as to the number of Warrants evidenced thereby) be identical to
the
Warrant Certificate being exercised. Any Warrant Certificates surrendered upon
exercise of Warrants shall be canceled by the Company.
8. Adjustment
of Number of Warrant Shares Issuable Upon Exercise and Adjustment of Exercise
Price.
(a)
Stock
Dividends, Subdivisions and Combinations. If at any time after the date hereof
the Company shall: (1) pay a dividend, or make any other distribution of,
additional shares of Common Stock to all holders of its Common Stock (other
than
pursuant to the exercise of Warrants); subdivide its outstanding shares of
Common Stock into a larger number of shares of Common Stock; or combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then the number of Warrant Shares for which each Warrant is exercisable
immediately after the occurrence of any such event shall be proportionately
increased in the case of (i) and (ii) above and proportionately decreased in
the
case of (iii) above.
(b)
Certain Other Distributions. If at any time after the date hereof the Company
shall make any dividend, or any other distribution by the Company to the holders
of its Common Stock, of any shares of capital stock of the Company, evidences
of
indebtedness of the Company, cash or other assets (including rights, warrants,
convertible securities or other securities (of the Company or any other
Person)), other than any dividend or distribution (i) upon a capital
reorganization, reclassification, merger or consolidation to which Paragraph
8.(c) applies, or (ii) of any common stock referred to in Paragraph 8.(a),
then
(x) the number of Warrant Shares for which each Warrant is exercisable shall
be
adjusted to equal the product obtained by multiplying the number of shares
of
Common Stock for which one Warrant is exercisable immediately prior to such
distribution by a fraction (A) the numerator of which shall be the Current
Market Price per share of Common Stock at the time of such distribution and
(B)
the denominator of which shall be the Current Market Price per share of Common
Stock minus the amount allocable to one share of Common Stock of the fair value
(as determined in good faith by the Board of Directors of the Company) of any
and all such evidences of indebtedness, shares of stock, other securities or
property so distributed.
(c)
Upon
Reclassifications, Reorganizations, Consolidations or Mergers. In the event
of
any capital reorganization of the Company, any reclassification of the stock
of
the Corporation (other than a change in par value or from par value to no par
value or from no par value to par value or as a result of a stock dividend
or
subdivision, split-up or combination or reverse split of shares), or any
consolidation or merger of the Company with or into another Person (where the
Company is not the surviving corporation or where there is a change in or
distribution with respect to the Common Stock), except in the case of a merge
or
consolidation to which clause (i) of the last sentence of this Paragraph 8.(c)
applies, each Warrant, effective at the close of business on the date such
reorganization, reclassification, consolidation, or merger shall become
effective, shall thereafter be exercisable for the kind and number of shares
of
stock or other securities or property, (including cash) receivable upon the
consummation of such reorganization, reclassification, consolidation or merger,
by a holder of the number of shares of Common Stock deliverable (immediately
prior to the time of such reorganization, reclassification, consolidation or
merger) upon exercise of such Warrant and otherwise shall have the same terms
and conditions applicable immediately prior to such time of such reorganization,
reclassification, consolidation or merger. The provisions of this clause shall
similarly apply to successive reorganizations, reclassifications,
consolidations, or mergers. The Corporation shall not effect any such
reorganization, reclassification, consolidation or merger unless, (i) in the
case of a merger or consolidation in which the consideration receivable upon
consummation of such merger or consolidation by a holder of shares of Common
Stock consists solely of cash, either (x) simultaneously with the consummation
thereof, the Corporation shall pay to the Holder of the Warrant Certificate
evidencing such Warrants an amount in cash equal to (A) the amount in cash
that
would be received upon such consummation by a holder of the number of shares
of
Common Stock deliverable (immediately prior to such consummation) upon exercise
of such Warrants less (B) the Exercise Price or (y) the Exercise Price for
any
Warrant exceeds the amount in cash that would be so received or (ii) in all
other cases, prior to the consummation thereof, the successor corporation (if
other than the Corporation) resulting from such reorganization,
reclassification, consolidation, or merger shall assume, by written instrument,
the obligation to deliver to the holders of this Warrant such shares of stock,
securities or property, including cash, which, in accordance with the foregoing
provisions, such holders shall be entitled to receive upon such
exercise.
(d) Exercise
Price Adjustment. Whenever the number of Warrant Shares into which a Warrant
is
exercisable is adjusted as provided in Paragraphs 8.(a) and 8.(b), the Exercise
Price payable upon exercise of the Warrant shall simultaneously be adjusted
by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, the numerator of which shall be the number of shares of Common Stock
into which such Warrant was exercisable immediately prior to such adjustment,
and the denominator of which shall be the number of shares of Common Stock
into
which such Warrant was exercisable immediately thereafter.
(e) Notice
of
Certain Events, Upon the occurrence of any event resulting in an adjustment
in
the number of Warrant Shares (or other stock or securities or property)
receivable upon the exercise of the Warrants or the Exercise Price, the Company
shall promptly thereafter (i) compute such adjustment in accordance with the
terms of the Warrants, (ii) prepare a certificate setting forth such adjustment
and showing in detail the facts upon which such adjustment is based, and (iii)
promptly mail copies of such certificate to each Warrantholder.
9. Reservation
of Shares.
The
Company shall at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued share capital,
the
aggregate number of the Warrant Shares deliverable upon the exercise of all
outstanding Warrants, for the purpose of enabling it to satisfy any obligation
to issue the Warrant Shares upon the due and punctual exercise of the Warrants,
through 5:00 p.m., New York City time, on the Warrant Expiration
Date.
10. No
Impairment.
The
Company shall not, by amendment of its organizational documents, or through
reorganization, consolidation, merger, dissolution, issuance or sale of
securities, sale of assets or any other
voluntary action, willfully avoid or seek to avoid the observance or performance
of any of the terms of the Warrants or this Warrant Agreement, and shall at
all
times in
good
faith assist in the carrying out of all such terms and in the taking of all
such
actions as may be necessary or appropriate in order to protect the rights of
Warrantholder under the Warrants and this Warrant Agreement against wrongful
impairment. Without limiting the generality of the foregoing, the Company:
(i)
shall not set or increase the par value of any Warrant Shares above the amount
payable therefore upon exercise, and (ii) shall take all actions that are
necessary or appropriate in order that the Company may validly and legally
issue
fully paid and nonassessable Warrant Shares upon the exercise of the
Warrants.
11. No
Rights or Liabilities as Shareholder.
No
holder, as such, of any Warrant Certificate shall be entitled to vote, receive
dividends or be deemed the holder of Shares which may at any time be issuable
on
the exercise of the Warrants represented thereby for any purpose whatever,
nor
shall anything contained herein or in any Warrant Certificate be construed
to
confer upon the holder of any Warrant Certificate, as such, any of the rights
of
a shareholder of the Company or any right to vote for the election of directors
or upon any matter submitted to shareholders at any meeting thereof, or to
give
or withhold consent to any corporate action (whether upon any recapitalization,
issuance of Common Stock, reclassification of Common Stock, change of par value
or change of Common Stock to no par value, consolidation, merger, conveyance
or
otherwise), or to receive notice of meetings or other actions affecting
stockholders or to receive dividend or subscription rights, or otherwise, until
such Warrant Certificate shall have been exercised in accordance with the
provisions hereof and the receipt and collection of the Exercise Price and
any
other amounts payable upon such exercise by the Company. No provision hereof,
in
the absence of affirmative action by Warrantholder to purchase Warrant Shares
shall give rise to any liability of such holder for the Exercise Price or as
a
shareholder of the Company, whether such liability is asserted by the Company
or
by creditors of the Company.
12. Fractional
Interests.
Notwithstanding the provisions of the Articles of Incorporation of the Company,
the Company shall not be required to issue fractional shares of Common Stock
upon exercise of the Warrants or to distribute certificates that evidence
fractional shares of Common Stock. If any fraction of a Warrant Share would,
except for the provisions of this Paragraph 12, be issuable on the exercise
of a
Warrant, the number of Warrant Shares to be issued by the Company shall be
rounded to the nearest whole number, with one-half or greater being rounded
up,
and less than one-half being rounded down.
13. Additional
Definitions.
Unless
the context otherwise requires, the terms defined in this Paragraph 13, whenever
used in this Warrant Agreement shall have the respective meanings hereinafter
specified and words in the singular or in the plural shall each include the
singular and the plural and the use of any gender shall include all
genders.
(a) "Affiliate"
shall mean, with respect to any Person, any officer or director of such Person,
or any other Person directly or indirectly controlling, controlled by, or under
common control with such Person. For purposes of this definition, "control"
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
(b) "Business
Day" shall mean any day other than a Saturday or a Sunday or any day on which
banks located in New York, New York are authorized or obligated to
close.
(c) "Common
Stock" means the common stock, par value $.0001 per share, of the
Company.
(d) "Current
Market Value" per share of Common Stock or any other security on any date of
determination means: (i) the average of the daily closing sale prices for each
of 15 trading days immediately preceding such date (or such shorter number
of
days during which such security has been listed or traded), if the security
has
been listed on the New York Stock Exchange, the American Stock Exchange or
other
national securities exchange or the NASDAQ National Market for at least 10
trading days prior to such date; (ii) if such security is not so listed or
traded, the average of the daily closing bid prices for each of the 15 trading
days immediately preceding such date or such shorter number of days during
which
such security had been quoted), if the security has been quoted on a national
over-the-counter market for at least 10 trading days; and (iii) otherwise,
the
value of the security most recently determined as of a date within the six
months preceding such day by the Board of Directors of the Company in good
faith,
(e) "Person"
shall mean any corporation, association, partnership, joint venture, trust,
organization, business, individual, government or political subdivision thereof
or governmental body,
14. Miscellaneous.
(a) Additional
Parties. The parties hereto agree that subsequent Persons who purchase Units
by executing
a Subscription Agreement shall, upon execution of a counterpart signature page
hereto, be added as a party to this Warrant Agreement and have all rights and
privileges of a Warrantholder and be subject and bound by all the terms and
conditions hereof as if such subsequent party was one of the Warrantholders
on
the date hereof.
(b) Amendments
and Waivers, This Warrant Agreement may be supplemented or amended only by
a
subsequent writing signed by each of the parties hereto (or their successors
or
permitted assigns), and any provision hereof may be waived only by a written
instrument signed by the party charged therewith,
(c) Counterparts.
This Warrant Agreement may be executed in counterparts and each such counterpart
shall for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
(d) Entire
Agreement. This Warrant Agreement and the other documents, instruments and
agreements executed in connection herewith constitute the entire agreement
by,
between and among the parties as to the subject matter hereof and merges and
supersedes any prior discussions, understandings and agreements of any and
every
nature by, between and among them as to the subject matter hereof.
(e) Governing
Law. THIS
WARRANT AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF
LAWS, RULES OR PRINCIPLES.
(f) Jurisdiction
and Venue. ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS WARRANT AGREEMENT
SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR NEW YORK. THE PARTIES HEREBY ACCEPT THE EXCLUSIVE
JURISDICTION OF THOSE COURTS FOR THE PURPOSE OF ANY SUCH SUIT, ACTION OR
PROCEEDING. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE
TO
THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING RISING OUT OF OR RELATING
TO THIS WARRANT AGREEMENT OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT
THEREOF BROUGHT IN ANY OF THE ABOVE DESCRIBED COURTS AND HEREBY FURTHER
IRREVOCABLY WAIVE ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT IN
NEW
YORK, HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES, FURTHER, CONSENT
TO SERVICE OF PROCESS IN ANY SUCH ACTION OR LEGAL PROCEEDING BY MEANS OF
REGISTERED MAIL OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN CARE OF THE
ADDRESS SET FORTH IN THE CONVERTIBLE NOTE EXECUTED BY SUCH PARTY OR SUCH OTHER
ADDRESS AS EITHER PARTY MAY FURNISH IN WRITING TO THE OTHER, PROVIDED PROCESS
IS
ACTUALLY RECEIVED.
(g) Notices.
Unless otherwise provided, any notice required or permitted by this Warrant
Agreement shall be in writing and shall be deemed sufficient upon delivery,
when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the United States mail as
certified or registered mail with postage prepaid, and addressed to the party
to
be notified at such party's address as set forth in the Subscription Agreement
executed by such party or as subsequently modified by written
notice.
(h) Sections
and Headings. The sections and headings used in this Warrant Agreement are
used
for convenience only and are not to be considered in construing or interpreting
this Warrant Agreement.
(i) Severability.
If one or more provisions of this Warrant Agreement are held to be unenforceable
under applicable law, such provision shall be automatically reformed so as
to be
enforceable while as nearly as possible preserving the original intent of the
parties.
(j) Successors
and Assigns. Except as
otherwise
provided in this Warrant Agreement, the terms and conditions of this Warrant
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Warrant
Agreement, express or implied, is
intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Warrant Agreement, except as expressly provided in this
Warrant Agreement.
(k) Termination.
This Warrant Agreement (other than Paragraph 7.(b) and Paragraph 14, and all
related definitions, all of which shall survive such termination) shall
terminate on the earlier of (i) the Warrant Expiration Date and (ii) the date
on
which all Warrants have been exercised.
15. Registration
Rights.
The
Warrant holder shall have such registration rights with respect to the number
of
shares of Common Stock issuable upon exercise of the Warrants (the "Registrable
Securities") as is set forth in the Registration Rights Agreement among the
Company and the Warrant holder.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have duly executed this Warrant Agreement
on
and as of the Effective Date.
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HERBORIUM
GROUP, INC.,
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By:
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Xx.
Xxxxx Xxxxxxxxx, CEO
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Warrantholder
Counterpart Signature Page
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WARRANTHOLDER:
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| Name of Warrantholder | |
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By:
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Title:
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Exhibit
2
FORM
OF
WARRANT CERTIFICATE
NEITHER
THIS SECURITY NOR THE COMMON STOCK OF THE COMPANY ISSUABLE UPON EXERCISE HEREOF
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY, SUCH COMMON STOCK NOR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FORM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A WARRANT
AGREEMENT, DATED AS OF _________________________, BETWEEN HERBORIUM GROUP,
INC.
AND THE WARRANTHOLDERS SIGNATORY THERETO OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE. COPIES OF SUCH AGREEMENTS MAY BE OBTAINED UPON WRITTEN REQUEST
TO
HERBORIUM GROUP, INC.
NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION THEREIN MAY BE OFFERED FOR
SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE 1933 ACT, OR APPLICABLE STATE SECURITIES
LAWS; OR (ii) IN THE ABSENCE OF AN OPINION OF COUNSEL, IN A FORM ACCEPTABLE
TO
THE ISSUER,
THAT REGISTRATION IS NOT REQUIRED UNDER THE 0000 XXX XX; (iii) UNLESS SOLD,
TRANSFERRED OR ASSIGNED PURSUANT TO RULE 144 UNDER THE 1933 ACT.
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WARRANT
NUMBER: HBRM-100
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NUMBER
OF CONVERTIBLE NOTE
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__________________________
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WARRANTS
: _________________________
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WARRANT
CERTIFICATE
HERBORIUM
GROUP, INC.
This
Warrant Certificate certifies that _________________________
, an
individual
or his
registered assigns, is the registered holder of _________________________
Warrants (the "Warrantholder") to purchase a number of shares (the "Warrant
Shares") of the common stock, par value $.001 per share (the "Common Stock")
of
Herborium Group, Inc. (the "Company"). Each Warrant entitles the holder thereof,
subject to the satisfaction of the conditions to exercise set forth in Paragraph
7 of the Warrant Agreement dated as of _______ between the Company and the
Warrant holders signatory thereto (the “Warrant Agreement”) to purchase, on or
prior to 5:00 p.m., New York City time, on ____________, 2013 (the "Warrant
Expiration Date"), that number of Warrant Shares equal to the quotient obtained
by multiplying one (1) by the number of Warrants represented hereby at the
price
(the "Exercise Price") of 50,000 Warrant Shares at two and a half cents ($0.025)
per Warrant Share and 50,000 Warrant Shares at five cents ($0.05) per Warrant
Share for each 100,000 Warrants. Any and all rights of exercise hereof shall
expire on the Warrant Expiration Date. The number of Warrant Shares issuable
under this Warrant Certificate and the Exercise Price are subject to adjustment
pursuant to Paragraph 8 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants to purchase Warrant Shares and are issued pursuant to a
Warrant Agreement, which Warrant Agreement is hereby incorporated by reference
in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and Warrantholder.
Warrantholder
may exercise Warrants in accordance herewith and with the Warrant Agreement
by
surrendering this Warrant Certificate, with the Election to Purchase, in the
form attached hereto, properly completed and executed, together with payment
of
the aggregate Exercise Price, at the offices of the Company. If, after the
exercise of Warrants evidenced hereby, the number of Warrants exercised shall
be
less than all of the Warrant Shares available hereunder, there shall be issued
to the holder hereof or its assignee a new Warrant Certificate evidencing the
number of Warrants then remaining.
This
Warrant Certificate, when surrendered at the offices of the Company, by the
registered holder thereof in person, by legal representative or by attorney
duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, for one or more other Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Warrantholder
may transfer the Warrants evidenced by this Warrant Certificate, in whole or
in
part, only in accordance with Paragraph 5 of the Warrant Agreement.
The
Company may deem and treat the registered holder hereof as the absolute owner
of
this Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone), for the purpose of any exercise hereof and
for
all other purposes, and the Company shall not be affected by any notice to
the
contrary.
(Signature
Appears Next Page)
WITNESS
the signatures of the duly authorized directors or officers of the Company
on
this day of
,
2008.
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HERBORIUM
GROUP, INC.
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By:
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Xx.
Xxxxx Xxxxxxxxx, CEO
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ELECTION
TO PURCHASE
The
undersigned hereby irrevocably elects to exercise___________________of
the Warrants evidenced by the attached Warrant Certificate to purchase Warrant
Shares, and herewith tenders (or is concurrently tendering) payment for such
Warrant Shares in an amount determined in accordance with the terms of the
Warrant Agreement. The undersigned requests that a
certificate representing such Warrant Shares be registered in the name of
________________________ whose address is________________________________ and
that such certificate be delivered to, whose address is ___________________________________________________________________.
If said number of Warrants is less than the number of Warrants then unexpired
pursuant to the Warrant Agreement and as evidenced by the Warrant Certificate,
the undersigned requests that a new Warrant Certificate evidencing the unexpired
number of Warrants then
evidenced by this Warrant Certificate be registered in the name of
_____________________________whose address is
__________________________________, and that such Warrant Certificate be
delivered to whose address
is____________________________________________________________________________.
Dated:
_________________,
200___
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Name
of holder of Warrant Certificate:
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(Please
Print) Address:
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Federal
Tax Identification Number:
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(if
applicable)
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Signature
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Note:
The above signature must correspond with the name as written in the first
sentence of the attached Warrant Certificate in every particular, without
alteration or enlargement or any change whatever, and if the certificate
evidencing the Warrant Shares or any Warrant Certificate representing Warrants
not exercised is to be registered in
a name other than that in which this Warrant Certificate is registered, the
signature above must be guaranteed.
Signature
Guaranteed: ______________________________
Dated:____________,
2008
ASSIGNMENT
For
value
received,_______________________________________________________________ hereby
sells,
assigns and transfers
unto____________________________________________________________ of the
Warrants
evidenced by the attached Warrant Certificate, together with all right, title
and
interest therein, and does hereby constitute and appoint
_________________________________________ as
its
due and lawful attorney, to register the transfer of said Warrants on the books
of Herborium Group, Inc., and to execute a new Warrant Certificate in the name
of ___________________________, whose address is
__________________________________________________evidencing the number of
Warrants so sold, assigned and transferred hereby. If the number of Warrants
sold, assigned or transferred hereunder is less than the unexpired number of
Warrants evidenced by the attached Warrant Certificate, then the undersigned
requests that a new Warrant Certificate for an amount of Warrants equal to
the
unexpired number of Warrants evidenced by the attached Warrant Certificate
that
were not sold, transferred or assigned be registered in the name of the
undersigned.
Signed
and delivered as a deed on ____________________________________,
20__________.
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Name
of holder of Warrant Certificate:
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(Please
Print) Address:
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Federal
Tax Identification Number:
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(if
applicable)
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Signature
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Note:
The above signature must correspond with the name as written in the first
sentence
of
the attached Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and such signature must be
guaranteed.
