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Exhibit 10.8
AMENDMENT NO. 1 TO WARRANT
FOR THE PURCHASE OF SHARES OF COMMON STOCK dated as of
May 30, 2008 (this “ Amendment ”) among
eDiets.com, Inc., a Delaware Corporation (the “
Company ”) and Prides Capital Fund I, L.P. (the
“ Purchaser ”).
PRELIMINARY
STATEMENTS:
(1) WHEREAS, the parties
hereto have entered into that certain Warrant for the Purchase of
Shares of Common Stock dated as of August 31, 2007 (the
“ Warrant ”). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in
the Warrant or in that certain Note and Warrant Purchase Agreement
dated August 31, 2007 (the “ Note and Warrant
Purchase Agreement ”) among the Company and the
Purchaser.
(2) WHEREAS, the Company has
requested that the Warrant be amended as provided
herein.
(3) The Purchaser is, on the
terms and conditions stated below, willing to grant the request of
the Company and the Company and the Purchaser have agreed to amend
the Warrant as hereinafter set forth.
SECTION 1. Amendments to
Warrant . The Warrant is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth
in Section 2, hereby amended as follows:
(a) Article 3 is amended by:
(1) renumbering existing subsection (c) as subsection
(d); (2) renumbering existing subsection (d) as new
subsection (e); and (3) inserting new subsection (c) to
read as follows:
(c) If, at any time while
this Warrant is outstanding, the Company shall issue additional
shares of Common Stock for consideration per share less than the
then current market price (determined (a) in the event that
the Common Stock is publicly listed, by reference to the closing
sales price of the Common Stock on the date of such issue or
(b) in the event that the Common Stock is not publicly listed,
by reference to the then current market value of each share of
Common Stock as determined by the Board of Directors of the Company
in good faith; provided, however, that in the event of a sale,
merger, liquidation, dissolution or winding up of the Company
(each, a ‘Liquidity Event’), current market price means
the amount per share payable to the holders of the Common Stock
upon the consummation of such Liquidity Event), then the Per Share
Warrant Price of the Warrant Shares shall be reduced, concurrently
with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Per Share Warrant Price by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issue plus the
number of shares which the aggregate consideration received by the
Company for the total number of additional shares of Common Stock
so issued would purchase at the then current fair market price, and
the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such
1
issue plus the number of such
additional shares of Common Stock so issued. Notwithstanding the
foregoing, no adjustment to the Per Share Warrant Price shall be
required under this Section 3(c): (i) in connection with
the issuance of shares of Common Stock and/or options, warrants or
other Common Stock purchase rights and the Common Stock issued
pursuant to such options, warrants or other rights (as adjusted for
any stock dividends, combinations, splits, recapitalizations and
the like after the date hereof) issued or to be issued after the
date hereof to employees, officers or directors of, or consultants
or advisors to the Company or any subsidiary, pursuant to stock
purchase or stock option or employee benefit plans or other
arrangements that are approved by the board of directors of the
Company; (ii) in connection with a bona fide firm commitment
underwritten public offering with a nationally recognized
underwriter which generates gross proceeds to the Company in excess
of $15 million; (iii) upon conversion of any options, warrants
or other rights to acquire shares of Common Stock that are
outstanding on the day immediately preceding the date hereof,
provided, however, that the terms of such options, warrants or
rights are not amended, modified or changed on or after the date
hereof; or (
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