Exhibit 4.2
WARRANT
NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
The Enlightened Gourmet, Inc.
Dated: August 29, 2008
The Enlightened Gourmet, Inc., a
corporation organized under the laws of the State of Nevada (the
"Company"), hereby certifies that, for value received,
________________ ("Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company up to a total
of Five Hundred Seventy-five Thousand (575,000) shares of
Common Stock, $.001 par value per share (the "Common Stock"), of
the Company (each such share, a "Warrant Share" and all such
shares, the "Warrant Shares") at an exercise price equal to $0.05
per share. The Warrant may be exercised on a cash or cashless basis
anytime after issuance through and including the fifth (5th)
anniversary of its issuance (the "Expiration Date"), subject to the
following terms and conditions:
1.
Registration of Warrant
. The Company shall register this
Warrant, upon records to be maintained by the Company for that
purpose (the "Warrant Register"), in the name of the record Holder
hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be
affected by notice to the contrary.
2.
Registration of Transfers and
Exchanges .
(a)
The Company or the transfer agent shall
enter or record the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant to the Transfer
Agent or to the Company at the office specified in or pursuant to
Section . Upon any such registration or transfer, a new
warrant to purchase Common Stock, in substantially the form of this
Warrant (any such new warrant, a "New Warrant"), evidencing the
portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance of such
transferee of all of the rights and obligations of a holder of a
Warrant.
(b)
This Warrant is exchangeable, upon the
surrender hereof by the Holder to the office of the Company
specified in or pursuant to Section for one or more New
Warrants, evidencing in the aggregate the right to purchase the
number of Warrant Shares which may then be purchased hereunder.
Any such New Warrant will be dated the date of such
exchange.
3.
Duration and Exercise of
Warrants.
(a)
This Warrant shall be exercisable by the
registered Holder on any business day before 5:00 P.M., New York
City time, at any time and from time to time on or after the date
hereof to and including the Expiration Date. At 5:00 P.M.,
New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of
no value. Prior to the Expiration Date, the Company may not
call or otherwise redeem this Warrant without the prior written
consent of the Holder.
(b)
Subject to terms and conditions of this
Warrant , and , upon surrender of this Warrant, with the Form
of Election to Purchase attached hereto duly completed and signed,
to the Company at its address for notice set forth in Section
and upon payment of the Exercise Price multiplied by
the number of Warrant Shares that the Holder intends to purchase
hereunder, in the manner provided hereunder, all as specified by
the Holder in the Form of Election to Purchase, the Company shall
promptly (but in no event later than 5 business days after the Date
of Exercise (as defined herein)) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder
and in such name or names as the Holder may designate, a
certificate for the Warrant Shares issuable upon such exercise,
free of restrictive legends except in the event that a registration
statement covering the resale of the Warrant Shares and naming the
Holder as a selling stockholder thereunder is not then effective or
the Warrant Shares are not freely transferable without volume
restrictions pursuant to Rule 144 promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). Any person so
designated by the Holder to receive Warrant Shares shall be deemed
to have become holder of record of such Warrant Shares as of the
Date of Exercise (as defined in this subsection) of this Warrant. A
"Date of Exercise" means the date on which the Company shall have
received (i) this Warrant (or any New Warrant, as applicable), with
the Form of Election to Purchase attached hereto (or attached to
such New Warrant) appropriately completed and duly signed, and (ii)
payment of the Exercise Price for the number of Warrant Shares so
indicated by the holder hereof to be purchased.
(c)
This Warrant shall be exercisable, either
in its entirety or, from time to time, for a portion of the number
of Warrant Shares. If less than all of the Warrant Shares
which may be purchased under this Warrant are exercised at any
time, the Company shall issue or cause to be issued, at its
expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant. In the event the Common Stock
representing the Warrant Shares is not delivered per the written
instructions of the Purchaser, within ten (10) business days after
the Notice of Election and Warrant is received by the Company
(the “Delivery Date”), then in such event the Company
shall pay to Holder one-half percent (0.5%) in cash, of the dollar
value of the Warrant Shares to be issued per each day after the
Delivery Date that the Warrant Shares are not delivered. The
Company acknowledges that its failure to deliver the Warrant Shares
by the Delivery Date will cause the Holder to suffer damages in an
amount that will be difficult to ascertain. Accordingly, the
parties agree that it is appropriate to include in this Warrant a
provision for liquidated damages. The parties acknowledge and
agree that the liquidated damages provision set forth in this
section represents the parties’ good faith effort to quantify
such damages and, as such, agree that the form and amount of such
liquidated damages are reasonable and will not constitute a
penalty. The payment of liquidated damages shall not relieve
the Company from its obligations to deliver the Common Stock
pursuant to the terms of this Warrant. The Company shall make any
payments incurred under this Section in immediately available
funds within ten (10) business days from the date of issuance of
the applicable Warrant Shares. Nothing herein shall limit
Holder’s right to pursue actual damages or cancel the Notice
of Election for the Company’s failure to issue and deliver
Common Stock to the Holder within fifteen (15) business days
following the Delivery Date.
2
(d)
Registration Rights
. In the event that, at any time
while this Warrant is outstanding, the Company registers its
securities pursuant to the Securities Act of 1933, as amended (the
“Securities Act”), in connection with a public offering
of its securities (other than a registration statement on Form S-4
or S-8 or subsequent similar forms), the Company shall advise the
registered holders of the Warrants or the Warrant Shares (each such
person being referred to herein as a “holder”) by
written notice at least ten (10) days prior to the date the Company
anticipates filing any registration statement under the Securities
Act covering any securities of the Company and will upon the
request of any such holder include in any such registration
statement such information as may be required to permit a public
offering of the Warrant Shares; provided, however, that the Company
shall not be required to include such Warrant Shares (x) in a
registration statement relating to an offering by the Company of
securities for its own account if the managing underwriter shall
have advised the Company in writing that the inclusion of such
Warrant Shares will have a material adverse effect upon the ability
of the Company to sell securities for its own account, or (y) in a
registration statement filed with respect to securities issued in a
private placement if the placement agent advises that the Company
that the inclusion of such shares will impair the ability of the
purchasers in the private placement to register their securities,
based upon the then current policies of the Securities and Exchange
Commission (the “Commission”) as to the number of
shares that may be included in a registration statement for selling
stockholders, or (z) if the agreements relating to the private
placement preclude the inclusion of such Warrant Shares. For
purposes of this Section 3(d), to the extent the Company conducts a
private placement of its securities without the services of a
placement agent; the term “placement agent” shall mean
the investors who participate in such private placement conducted
by the Company.
4.
Payment of Taxes
. The Company will pay all
documentary stamp taxes attributable to the issuance of Warrant
Shares upon the exercise of this Warrant; provided, however, that
the Company shall not be required to pay any tax that may be
payable in respect of any transfer involved in the registration of
any certificates for Warrant Shares or Warrants in a name other
than that of the Holder. The Holder shall be responsible for
all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise
hereof.
5.
Replacement of Warrant
. If this Warrant is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be
issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New
Warrant, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction and indemnity, if
requested, satisfactory to it. Applicants for a New Warrant
under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable
charges as the Company may prescribe.
6.
Reservation of Warrant
Shares . The Company
covenants that it will at all times reserve and keep available out
of the aggregate of its authorized but unissued Common Stock,
solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant
Shares which are then issuable and deliverable upon the exercise of
this entire Warrant, free from preemptive rights or any other
actual contingent purchase rights of persons other than the Holder
(taking into account the adjustments and restrictions of Section 7.
The Company covenants that all Warrant Shares that
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