EXHIBIT 99.28
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 B COMMON STOCK
WARRANT AGREEMENT
THIS CLASS B 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 Xxxxxxxxx ("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 21 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 21 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
Forty-Five Cents ($0.45) 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 $0.001 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 Forty-Five Cents ($0.45) 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,
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the Exercise Price shall be $0.30 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."
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.
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.
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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.
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
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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:
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.
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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 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).
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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 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
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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:
(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.
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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.
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.
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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 Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
President & CEO
Accepted as of the date written above:
WARRANT HOLDER
Xxxx Xxxxxxxxx
By: /s/ Xxxx Xxxxxxxxx
------------------------
Its:
------------------------
By:
------------------------
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CERTIFICATE NO. VBS-4B
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 B COMMON STOCK WARRANT
TO PURCHASE 54,167 SHARES OF COMMON STOCK OF
VITAFORT INTERNATIONAL CORPORATION
A Delaware Corporation
THIS CERTIFIES that, for value received, Xxxx Xxxxxxxxx or registered
assigns ("Holder"), is entitled to purchase from VITAFORT INTERNATIONAL
CORPORATION, INC. a Delaware corporation, ("Company"), up to Fifty-Four Thousand
One Hundred Sixty-Seven(54,167), 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 21 months thereafter, at the purchase
price of $0.30 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 Xxxxxxx
-------------------------------
Xxxx Xxxxxxx
President & CEO
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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-4B 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-4B 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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