AGREEMENT TO AMEND WARRANTS
THIS AGREEMENT TO AMEND WARRANTS (the “Agreement”) is made and entered into as of June 23, 2009, by and between EDIETS.COM, INC., a Delaware corporation (the “Company”), and PRIDES CAPITAL FUND I, L.P., a Massachusetts limited partnership (the “Warrant Holder”).
WHEREAS, the Company has issued to the Warrant Holder certain Warrants for the Purchase of Shares of Common Stock, as more fully described on Schedule 1 attached hereto and incorporated herein by reference (as amended, replaced, restated, superseded and/or modified from time to time, each an “Existing Warrant” and collectively, the “Existing Warrants”);
WHEREAS, the Company and the Warrant Holder have entered into an Amendment No. 1 to Warrant for the Purchase of Common Stock dated as of May 30, 2008 (“Amendment No. 1”) amending the Existing Warrant dated August 31, 2007; and
WHEREAS, the Company has informed the Warrant Holder that it would agree to amend the exercise price of the Existing Warrants and to provide certain further inducements if the Warrant Holder will use diligent efforts to exercise such Existing Warrants as soon as reasonably practicable, all in the manner set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto do hereby agree as follows:
1. Capitalized terms not otherwise defined in this Agreement have the meanings provided in the Existing Warrants.
2. The Existing Warrants are hereby amended by deleting the definition of “Per Share Warrant Price” in such Existing Warrant and replacing such definition with “a per share exercise price of $1.00 (the “Per Share Warrant Price”).”
3. The Warrant Holder shall use diligent efforts to exercise, in one or more tranches, a portion of the Existing Warrants, as amended by this Agreement, as soon as reasonably practicable following execution of this Agreement in order to purchase 2,500,000 Warrant Shares.
4. The Section 3(c) of the Existing Warrant dated as of May 30, 2008 and the Existing Warrant dated as of August 31, 2007 (as amended by Amendment No. 1) are each hereby amended to insert the following at the end of the first sentence thereof:
“; provided, however, that no adjustment under this Section 3(c) shall operate to reduce the Per Share Warrant Price of the Warrant Shares to a price that is less than $0.92 per share, representing the closing bid price for one share of the Common Stock on June 22, 2009”.
5. As a further inducement to the Warrant Holder, within three Trading Days following (i) the exercise by the Warrant Holder of all or any portion of the Existing Warrants and (ii) receipt by the Company of payment of the Per Share Warrant Price multiplied by the number of Warrant Shares to which such exercise relates, the Company shall issue to the Warrant Holder a warrant (each, a “New Warrant” and collectively the “New Warrants”) in the form of Exhibit A attached hereto and incorporated herein by reference, entitling the Warrant Holder to purchase up to a number of shares of the Company’s common stock equal to 45% of the Warrant Shares to which such exercise relates. Such New Warrant shall be exercisable on or after the Original Issue Date (as defined in the New Warrant), shall have a term of exercise equal to ten (10) years and shall have a strike price of $1.20 per share. The Company shall undertake to register shares of common stock issued pursuant to the exercise of New Warrants in accordance with the terms of the Registration Rights Agreement (as defined in the New Warrant).
6. On the date hereof and again on the date of issuance of each New Warrant, the Warrant Holder represents and warrants to, and covenants with, the Company as follows:
(a) the Warrant Holder was at the time it was offered the New Warrant, is as of the date hereof and as of the Closing and will be on each date it exercises the Warrant an “accredited Warrant Holder” as such term is defined in Rule 501 of Regulation D promulgated pursuant to the Securities Act of 1933, as amended, is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision similar to that involved in the purchase of the New Warrant, and has requested, received, reviewed and considered all information the Warrant Holder deemed relevant in making an informed decision to purchase the New Warrant and is able to bear the economic risk of an investment in the New Warrant and, at the present time, is able to afford a complete loss of such investment;
(b) the Warrant Holder understands that the New Warrants are “restricted securities” and have not been registered under the Securities Act, or registered or qualified under any state securities law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the representations made by the Warrant Holder in this Agreement; the Warrant Holder is acquiring the New Warrant in the ordinary course of business and for the Warrant Holder’s own account for investment only, has no present intention of distributing any of such New Warrant and has no arrangement or understanding with any other persons regarding the distribution of such New Warrant; and
(c) the Warrant Holder will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the New Warrant except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder.
7. On the date hereof and again on the date of issuance of each New Warrant, the Company represents and warrants to, and covenants with, the Warrant Holder as follows:
(a) The Company is duly incorporated and validly existing in good standing under the laws of the State of Delaware, has full power and authority to own, operate and occupy its properties and to conduct its business as presently conducted and is registered or qualified to do business and in good standing in each jurisdiction in which it owns or leases property or transacts business and
where the failure to be so qualified would have a material adverse effect upon the Company and its subsidiaries as a whole or the business, financial condition, prospects, properties, operations or assets of the Company and its subsidiaries as a whole or the Company’s ability to perform its obligations under this Agreement in all material respects, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification;
(b) The Company has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; the execution and delivery of this Agreement, and the consummation by the Company of the transactions contemplated hereby, have been duly authorized by all necessary corporate action and no further action on the part of the Company or the Board or shareholders is required; and
(c) The New Warrants have been duly authorized, and when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable, subject to no lien, claim or encumbrance (except for any such lien, claim or encumbrance created, directly or indirectly, by the Warrant Holder).
8. This Agreement shall be effective as of the date first above written (the “Effective Date”) on the date when the Company and the Warrant Holder shall have executed, and delivered to each other, its respective counterpart to this Agreement.
9. Except as specifically set forth in this Agreement, there are no other amendments, modifications or waivers to the Existing Warrants, and all of the other forms, terms and provisions of the Existing Warrants remain in full force and effect.
10. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and their respective successors and permitted assigns. This Agreement shall be construed and enforced in accordance with and governed by the law of the State of Delaware without giving effect to the principles of conflicts of law thereof. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the Warrant Holder and the Company have executed and delivered this Agreement as of the date first above written.
Schedule of Warrants
Form of New Warrant
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT OR THE ISSUER HAS RECEIVED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
eDiets.com, Inc .
Warrant for the Purchase of Shares of
FOR VALUE RECEIVED, eDiets.com, Inc., a Delaware corporation (the “Company”), hereby certifies that or his assigns, is entitled to purchase from the Company, at any time or from time to time commencing on the date hereof (the “Initial Exercise Date”) and expiring at 5:00 P.M., New York City time, on the ten (10) year anniversary of the Original Issue Date (the “Expiration Date”) ( ) fully paid and non-assessable shares of Common Stock, par value $.001 per share, of the Company (the “Warrant Shares”) for a per share exercise price of $1.20 (the “Per Share Warrant Price”). The Per Share Warrant Price is subject to adjustment as hereinafter provided. Capitalized terms used and not otherwise defined in this Warrant shall have the meanings specified in Section 8, unless the context otherwise requires.
1. Exercise of Warrant.
(a) This Warrant may be exercised, in whole at any time or in part from time to time, commencing on the Initial Exercise Date and expiring at 5:00 P.M., New York City time, on the Expiration Date (with the Exercise Notice at the end of this Warrant duly executed) at the address set forth in Section 10 hereof, together with payment of the Per Share Warrant Price multiplied by the number of Warrant Shares to which such exercise relates made by delivery to the Company of one or more types of Permitted Consideration.
(b) If this Warrant is exercised in part, the Company will deliver to the Holder within three Trading Days of the date such Holder delivers to the Company this Warrant and an Exercise Notice, together with the payment of the aggregate Per Share Warrant
Price for such exercise, a new Warrant covering the Warrant Shares that have not been exercised. By the expiration of the third Trading Day following the Holder’s delivery of a Warrant, together with an Exercise Notice and the payment of the aggregate Per Share Warrant Price for such exercise, the Company will (i) issue a certificate or certificates in the name of the Holder for the largest number of whole shares of the Common Stock to which the Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of any fractional share of the Common Stock to which the Holder shall be entitled, pay to the Holder cash in an amount equal to the fair value of such fractional share (determined by reference to the closing sales price of the Common Stock on the date of the Exercise Notice), and (ii) deliver the other securities and properties receivable upon the exercise of this Warrant, or the proportionate part thereof if this Warrant is exercised in part, pursuant to the provisions of this Warrant.
(c) If, by the third Trading Day after the date that the Holder delivers an Exercise Notice, together with the payment of the aggregate Per Share Warrant Price for such exercise, the Company fails to deliver the required number of Warrant Shares in the manner required pursuant to Section 1(b), then the Holder will have the right to rescind such exercise.
(d) If, by the third Trading Day after the date that the Holder delivers an Exercise Notice, together with the payment of the aggregate Per Share Warrant Price for such exercise, the Company fails to deliver the required number of Warrant Shares in the manner required pursuant to Section 1(b), and if after such third Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (1) pay in cash to the Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue by (B) the closing bid price of the Common Stock at the time of the obligation giving rise to such purchase obligation and (2) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In.
(e) If, after the Required Effective Date (as defined in the Registration Rights Agreement) the Warrant Shares to be issued are not registered and available for resale by the Holder pursuant to a registration statement in accordance with the Registration Rights Agreement, then notwithstanding anything contained herein to the contrary, the Holder may, at its election exercised in its sole discretion, exercise a portion of this Warrant with respect to an aggregate total of twenty-five percent (25%) of the total Warrant Shares and, in lieu of making a cash payment of Permitted Consideration, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined according to the following formula:
For purposes of the foregoing formula:
A=the total number of Warrant Shares with respect
to which this Warrant is then being exercised.
B=the average of the closing sales prices for the five
Trading Days immediately prior to (but not including)
the day that the Holder delivers the Exercise Notice at issue.
C=the Per Share Warrant Price.
2. Company’s Option to Change Expiration Date.
Notwithstanding anything herein to the contrary, in the event that (i) the closing sales price per share of Common Stock is in excess of 150% of the Per Share Warrant Price (as may be adjusted pursuant to Section 3) for thirty (30) consecutive Trading Days, (ii) the Warrant Shares are either registered