THE TRANSFERABILITY OF THIS WARRANT IS RESTRICTED AS PROVIDED IN SECTION 3
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Exhibit 4.3
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NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED
AS PROVIDED IN SECTION 3
| No. 2009-3 |
May 26,
2009
|
COMMON
STOCK PURCHASE WARRANT
For
good and valuable consideration, the receipt of which is hereby acknowledged by
SKINNY NUTRITIONAL CORP., a Nevada corporation (the “Company”), Liquid Mojo LLC
(the “Holder”), is hereby granted the right to purchase, at any time from and
after the date specified in Section 1.1 below until 5:00 P.M., New York City
time, on May 26, 2014 (the “Warrant Exercise Term”), up to Two Million Five
Hundred Thousand (2,500,000) fully-paid and non-assessable shares of the
Company's Common Stock, $.001 par value per share (“Common Stock”).
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l.
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Exercise of
Warrant
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1.1 This
Warrant shall only be exercisable commencing at 9:00 a.m. on the first business
day following the effective date of the acceptance by the Secretary of State of
the State of Nevada of an amendment to the Company’s Articles of Incorporation
to increase the number of authorized shares of Common Stock in an amount
sufficient to permit the exercise of all of the Warrant Shares (as defined
below).
1.2 During
the Warrant Exercise Term, this Warrant shall be exercisable at a per share
price of $0.05 (the “Exercise Price”), subject to adjustment as provided in
Section 2 hereof, payable in cash or by certified or official bank check in New
York Clearing House funds. Upon surrender of this warrant certificate with the
annexed Subscription Form duly executed, together with payment of the Exercise
Price for the shares of Common Stock purchased at the Company’s principal
executive offices the registered Holder of the Warrant shall be entitled to
receive a certificate or certificates for the shares of Common Stock so
purchased (the “Warrant Shares”). The purchase rights represented by this
Warrant are exercisable at the option of the Holder hereof, in whole or in part
(but not as to fractional shares of the Common Stock) during any period in which
this Warrant may be exercised as set forth above. In the case of the purchase of
less than all the shares of Common Stock purchasable under this Warrant, the
Company shall cancel this Warrant upon the surrender thereof and, upon the
written request of the Holder, the Company shall execute and deliver a new
Warrant of like tenor for the balance of the shares of Common Stock purchasable
hereunder.
1.3 The
issuance of certificates for shares of Common Stock upon the exercise of this
Warrant shall be made without charge to the Holder hereof including, without
limitation, any tax which may be payable in respect of the issuance thereof, and
such certificates shall be issued in the name of, or in such names as may be
directed by, the Holder hereof; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of such certificate in a name other than that of
the Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been
paid.
1.4
The Company covenants that it will at all times reserve and keep available out
of its authorized Common Stock, solely for the purpose of issuance upon exercise
of this Warrant as herein provided, such number of shares of Common Stock as
shall then be issuable upon the exercise of this Warrant. The Company
covenants that all shares of Common Stock which shall be so issuable shall be
duly and validly issued and fully-paid and non-assessable.
1.5 Each
exercise of this Warrant by the Holder shall be deemed to have been effected
immediately prior to the close of business on the date upon which all of the
requirements of Sections 1.1 and 1.2 hereof with respect to such exercise shall
have been complied with in full (each such date, an “Exercise
Date”). On the applicable Exercise Date with respect to any exercise
of this Warrant by the Holder, the Company shall be deemed to have issued to the
Holder, and the Holder shall be deemed to have become the holder of record and
legal owner of, the number of Warrant Shares being purchased upon such exercise
of this Warrant, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such number of Warrant
Shares being purchased shall not then be actually delivered to the
Holder.
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2.
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Adjustments and
Extraordinary Events
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2.1
Stock Dividends, Subdivisions,
Reclassifications or Combinations. If the Corporation shall
(A) declare a dividend or make a distribution on its Common Stock in shares of
its Common Stock, (B) subdivide or reclassify the outstanding shares of Common
Stock into a greater number of shares, or (C) combine or reclassify the
outstanding Common Stock into a smaller number of shares, the Exercise Price in
effect at the time of the record date for such dividend or distribution or the
effective date of such subdivision, combination or reclassification shall be
proportionately adjusted. Any adjustment made herein which results in a decrease
(or increase) in the Exercise Price shall also effect a proportional increase
(or decrease) in the number of shares of Common Stock into which this Warrant is
exercisable. Successive adjustments in the Exercise Price shall be made whenever
any event specified above shall occur.
2.2 Reorganization, Reclassification,
Merger, Consolidation or Disposition of Assets. In case the Company shall
reorganize its capital, reclassify its capital stock, consolidate or merge with
or into another corporation (where the Company is not the surviving corporation
or where there is a change in or distribution with respect to the Common Stock
of the Company), or sell, transfer or otherwise dispose all or substantially all
of its property, assets or business to another corporation and, pursuant to the
terms of such reorganization, reclassification, merger, consolidation or
disposition of assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property of any
nature whatsoever (including warrants or other subscription or purchase rights)
in addition to or in lieu of common stock of the successor or acquiring
corporation (“Other Property”), are to be received by or distributed to the
holders of Common Stock of the Company, then the Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the number of shares of
common stock of the successor or acquiring corporation or of the Company, if it
is the surviving corporation, and Other Property receivable upon or as a result
of such reorganization, reclassification, merger, consolidation or disposition
of assets by a Holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event. In case of any such
reorganization, reclassification, merger, consolidation or disposition of assets
(“Extraordinary Transaction”), the successor or acquiring corporation (if other
than the Company) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant to be
performed and observed by the Company and all the obligations and liabilities
hereunder, subject to such modifications as may be deemed appropriate (as
determined in good faith by resolution of the Board of Directors of the Company)
in order to provide for adjustments of Warrant Shares for which this Warrant is
exercisable which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section
2.2. As soon as commercially practicable following the
Extraordinary Transaction, the successor or acquiring corporation (if other than
the Company), shall deliver to Holder a new warrant in repacement of this
Warrant consistent with the provisions referenced in the immediately preceding
sentence against receipt by such successor or acquiring corporation of the
original of this Warrant. For purposes of this Section 2.2, “common
stock of the successor or acquiring corporation” shall include stock of such
corporation of any class which is not preferred as to dividends or assets over
any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this Section 2.2 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
2
2.3 Notice of Adjustment.
Whenever the number of Warrant Shares or number or kind of securities or other
property purchasable upon the exercise of this Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall give prior written notice
thereof to the Holder of at least 15 days prior to the date on which the Company
closes its books or takes a record for determining the particular event, which
notice shall state the number of Warrant Shares (and other securities or
property) purchasable upon the exercise of this Warrant and the Exercise Price
of such Warrant Shares (and other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made.
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3.
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Restrictions on
Transfer
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The Holder acknowledges that he has
been advised by the Company that this Warrant and the Warrant Shares issuable
upon exercise thereof (collectively the “Securities”) have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), that the
Warrant is being issued, and the shares issuable upon exercise of the Warrant
will be issued, on the basis of the statutory exemption provided by section 4(2)
of the Securities Act relating to transactions by an issuer not involving any
public offering, and that the Company's reliance upon this statutory exemption
is based in part upon the representations made by the Holder contained
herein. The Holder acknowledges that he has been informed by the
Company of, or is otherwise familiar with, the nature of the limitations imposed
by the Securities Act and the rules and regulations thereunder on the transfer
of securities. In particular, the Holder agrees that no sale, assignment or
transfer of the Securities shall be valid or effective, and the Company shall
not be required to give any effect to any such sale, assignment or transfer,
unless (i) the sale, assignment or transfer of the Securities is registered
under the Securities Act, and the Company has no obligations or intention to so
register the Securities except as may otherwise be provided herein, or (ii) the
Securities are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Securities Act or such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act. The Holder represents and warrants that he has acquired this
Warrant and will acquire the Securities for his own account for investment and
not with a view to the sale or distribution thereof or the granting of any
participation therein, and that he has no present intention of distributing or
selling to others any of such interest or granting any participation therein.
The Holder acknowledges that the Warrant and Warrant Shares must be held
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act or registered or qualified under any applicable state securities
or “blue-sky” laws or is exempt from registration and/or qualification. The
Holder has no need for liquidity in its investment in the Company, and is able
to bear the economic risk of such investment for an indefinite period and to
afford a complete loss thereof. The Holder is an “accredited investor” as such
term is defined in Rule 501 (the provisions of which are known to the Holder)
promulgated under the Act.
The
Holder acknowledges that the securities shall bear the following
legend:
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“These
securities have not been registered under the Securities Act of
1933. Such securities may not be sold or offered for sale,
transferred, hypothecated or otherwise assigned in the absence of an
effective registration statement with respect thereto under such Act or an
opinion of counsel to the Company that an exemption from registration for
such sale, offer, transfer, hypothecation or other assignment is available
under such Act.”
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3
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4.
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Registration
Rights.
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4.1 Piggyback Registration
Rights. The Company shall advise the Holder of this Warrant or
of the Warrant Shares or any then Holder of Warrants or Warrant Shares (such
persons being collectively referred to herein as “Holders”) by written notice at
least 20 days prior to the filing by the Company with the Securities and
Exchange Commission of any other registration statement under the Securities Act
of 1933 (the “Act”) covering securities of the Company, except on Forms S-4 or
S-8 (or similar successor form), and upon the request of any such Holder within
ten days after the date of such notice, include in any such registration
statement such information as may be required to permit a public offering of the
Warrant Shares. The Company shall supply such number of prospectuses
and other documents as the Holder may reasonably request in order to facilitate
the public sale or other disposition of the Warrant Shares, qualify the Warrant
Shares for sale in such states as any such Holder reasonably designates and do
any and all other acts and things which may be necessary or desirable to enable
such Holders to consummate the public sale or other disposition of the Warrant
Shares, and furnish indemnification in the manner as set forth below. Such
Holders shall furnish information and indemnification as set forth
below. For the purpose of the foregoing, inclusion of the Warrant
Shares by the Holder in a Registration Statement under a condition that the
offer and/or sale of such Warrant Shares not commence until a date not to exceed
90 days from the effective date of such registration statement shall be deemed
to be in compliance with this sub-paragraph.
4.2 Procedures. The
foregoing registration rights shall be contingent on the Holders furnishing the
Company with such appropriate information (relating to the intentions of such
Holders) as the Company shall reasonably request in writing. Following the
effective date of such registration, the Company shall upon the request of any
owner of Warrants and/or Warrant Shares forthwith supply such number of
prospectuses meeting the requirements of the Act as shall be requested by such
owner to permit such Holder to make a public offering of all Warrant Shares from
time to time offered or sold to such Holder, provided that such Holder shall
from time to time furnish the Company with such appropriate information
(relating to the intentions of such Holder) as the Company shall request in
writing. The Company shall also use its best efforts to qualify the Warrant
Shares for sale in such states as such Holder shall reasonably designate. The
Company may withdraw the registration at any time.
4.3 Indemnity. The
Company shall indemnify and hold harmless each such Holder and each underwriter,
if any, within the meaning of the Act, who may purchase from or sell for any
such Holder any Warrant Shares from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post-effective amendment thereto or any registration statement under the Act or
any prospectus included therein required to be filed or furnished by reason of
this Section 4 or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information furnished or required to
be furnished in writing to the Company by such Holder or underwriter expressly
for use therein, which indemnification shall include each person, if any, who
controls any such underwriter within the meaning of such Act; provided, however,
that the Company shall not be obliged so to indemnify any such Holder or
underwriter or controlling person unless such Holder or underwriter shall at the
same time agree to indemnify the Company, its directors, each officer signing
the related registration statement and each person, if any, who controls the
Company within the meaning of such Act, from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or any
prospectus required to be filed or furnished by reason of this Section 4 or
caused by any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or alleged untrue statement or omission based upon information furnished in
writing to the Company by any such Holder or underwriter expressly for use
therein.
4.4 Registration Expenses. The
Holder thereof shall pay all transfer taxes, if any, relating to the sale of its
shares, any registration fees, underwriting discounts or commissions or the
equivalent thereof applicable to the sale of its shares and the fees of his own
counsel. Other than as described in the preceding sentence, the Company shall
pay all expenses incident to the registration of the Warrant Shares by the
Company, including, without limitation, all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, underwriting
discounts, fees and expenses (other than any Holder’s portion of any
underwriting discounts or commissions or the equivalent thereof), printing
expenses, messenger and delivery expenses, and reasonable fees and expenses of
counsel for the Company and the independent certified public accountants and
other persons retained by the Company.
4
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5.
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Redemption.
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5.1 The
Company may, subject to the conditions set forth herein, redeem some or all of
the Warrants then outstanding upon not less than thirty (30) days nor more than
sixty (60) days prior written notice to the Warrant Holders at any time, provided: (i) this
Warrant has been issued by the Company; (ii) the closing bid price of the
Company's Common Stock for each of the twenty (20) consecutive trading days
prior to the date of the notice of redemption is at least $1.50, as
proportionately adjusted to reflect any stock splits, stock dividends,
combination of shares or like events and (iii) all of the Warrant Shares have
been registered for resale and continue to be covered by an effective
and current registration statement with the Securities and Exchange
Commission. Notice will be effective upon mailing and the time of
mailing is the “Effective Date of the Notice”. The Notice will state a
redemption date not less than thirty (30) days nor more than sixty (60) days
from the Effective Date of the Notice (the “Redemption Date”). No Notice shall
be mailed unless all funds necessary to pay for redemption of the Warrants to be
redeemed shall have first been set aside by the Company for the benefit of the
Warrant Holders so as to be and continue to be available therefor. The
redemption price to be paid to the Warrant Holders will be $.10 for each share
of Common Stock of the Company to which the Warrant Holder would then be
entitled upon exercise of the Warrant being redeemed, as adjusted from time to
time as provided herein (the “Redemption Price”). The Warrant Holders may
exercise their Warrants between the Effective Date of the Notice and 5:00 p.m.
Eastern Time on the business day immediately prior to the Redemption Date, such
exercise being effective if done in accordance with Section 1 hereof, and if the
Warrant Certificate, with form of election to purchase duly executed and the
Warrant Price, as applicable for such Warrant subject to redemption for each
share of Common Stock to be purchased is actually received by the Company at its
principal offices prior to 5:00 p.m. Eastern Time on the business day
immediately prior to the Redemption Date.
5.2 If
any Warrant Holder does not wish to exercise any Warrant being redeemed, he
should mail such Warrant to the Company at its principal offices after receiving
the Notice of Redemption required by this Section 5. If such Notice of
Redemption shall have been so mailed, and if on or before the Effective Date of
the Notice all funds necessary to pay for redemption of the Warrants subject to
redemption shall have been set aside by the Company for the benefit of such
Warrant Holders, then, on and after said Redemption Date, notwithstanding that
any Warrant subject to redemption shall not have been surrendered for
redemption, the obligation evidenced by all Warrants not surrendered for
redemption or effectively exercised shall be deemed no longer outstanding, and
all rights with respect thereto shall forthwith cease and terminate, except only
the right of the holder of each Warrant subject to redemption to receive the
Redemption Price for each share of Common Stock to which he would be entitled if
he exercised the Warrant upon receiving notice of redemption of the Warrant
subject to redemption held by him.
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6.
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Exchange and
Replacement of Warrant
Certificates.
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This Warrant Certificate is
exchangeable without expense, upon the surrender hereof by the registered Holder
at the principal executive office of the Company, for a new Warrant Certificate
of like tenor and date representing in the aggregate the right to purchase the
same number of Warrant Shares in such denominations as shall be designated by
the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it, and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Warrants, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu thereof and any such lost, stolen, destroyed
or mutilated warrant shall thereupon become void.
5
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7.
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Elimination of
Fractional Interests.
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The Company shall not be required to
issue certificates representing fractions of the shares of Common Stock and
shall not be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up or down to the nearest whole
number of shares of Common Stock.
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8.
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Rights of Warrant
Holders.
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Nothing contained in this Agreement
shall be construed as conferring upon the Holder any rights whatsoever as a
stockholder of the Company, either at law or in equity, including without
limitation, or Holders the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors the right to receive dividends or any other matter.
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9.
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Miscellaneous
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9.1 All
the covenants and agreements made by the Company in this Warrant shall bind its
successors and assigns. This Warrant shall be for the sole and exclusive benefit
of the Holder and nothing in this Warrant shall be construed to confer upon any
person other than the Holder any legal or equitable right, remedy or claim
hereunder.
9.2 No
recourse shall be had for any claim based hereon or otherwise in any manner in
respect hereof, against any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor corporation,
whether by virtue of any constitutional provision or statute or rule of law, or
by the enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
9.3 No
course of dealing between the Company and the Holder hereof shall operate as a
waiver of any right of any Holder hereof, and no delay on the part of the Holder
in exercising any right hereunder shall so operate.
9.4 This
Warrant may be amended only by a written instrument executed by the Company and
the Holder hereof. Any amendment shall be endorsed upon this Warrant,
and all future Holders shall be bound thereby.
9.5 All
communications provided for herein shall be sent, except as may be otherwise
specifically provided, by registered or certified mail: if to the
Holder of this Warrant, to the address shown on the books of the Company; and if
to the Company, to Three Bala Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000,
attention: Office of the President, or to such other address as the Company may
advise the Holder of this Warrant in writing. Notices shall be deemed
given when mailed.
9.6 The
provisions of this Warrant shall in all respects be constructed according to,
and the rights and liabilities of the parties hereto shall in all respects be
governed by, the laws of the State of New York. This Warrant shall be
deemed a contract made under the laws of the State of New York and the validity
of this Warrant and all rights and liabilities hereunder shall be determined
under the laws of said State.
9.7 The
headings of the Sections of this Warrant are inserted for convenience only and
shall not be deemed to constitute a part of this Warrant.
6
IN
WITNESS WHEREOF, SKINNY NUTRITIONAL CORP. has caused this Warrant to be executed
in its corporate name by its officer, and its seal to be affixed
hereto.
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Dated:
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May
26, 0000
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Xxxx
Xxxxxx, Xxxxxxxxxxxx
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||
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By:
____________________________________
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||
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Chief
Executive Officer
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||
7
SUBSCRIPTION
FORM
Three Xxxx Xxxxx Xxxx, Xxxxx
000
Xxxx Xxxxxx,
XX 00000
The undersigned Holder hereby
irrevocably elects to exercise the right to purchase ________ shares of Common
Stock covered by this Warrant according to the conditions hereof and herewith
makes full payment of the Exercise Price of such shares.
Kindly deliver to the undersigned a
certificate representing the Shares.
INSTRUCTIONS
FOR DELIVERY
Name: ____________________________________________________________
(please typewrite or print in block
letters)
Address:
__________________________________________________________
Tax I.D.
No. or Social Security No.: ____________________________________
Dated:
_________________________
Signature
________________________________
STATE OF
___________)
COUNTY OF
_________) ss:
On this __ day of ___________, before
me personally came ________, to me known, who being by me duly sworn, did depose
and say that he resides at __________________, that he is the holder of the
foregoing instrument and that he executed such instrument and duly acknowledged
to me that he executed the same.
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Notary
Public
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8
[FORM OF
ASSIGNMENT]
(To be
executed by the registered holder if such holder
desires
to transfer the Warrant Certificate.)
FOR VALUE RECEIVED
_________________________ hereby sells, assigns and transfers
unto
________________________________________________________________________________
(Please
print name and address of transferee)
this
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint
________________________________________, Attorney, to transfer the within
Warrant Certificate on the books of SKINNY NUTRITIONAL CORP., with full power of
substitution.
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Dated:
____________________________
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Signature:
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(Signature
must conform in all respects to name of holder as specified on the face of
the Warrant Certificate)
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(Insert
Social Security or Other
Identifying
Number of Assignee)
STATE OF
___________)
COUNTY OF
_________) ss:
On this __ day of ___________, before
me personally came ________, to me known, who being by me duly sworn, did depose
and say that he resides at __________________, that he is the holder of the
foregoing instrument and that he executed such instrument and duly acknowledged
to me that he executed the same.
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Notary
Public
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9
