Exhibit 4.4
Form of Warrant
THIS
WARRANT AND ANY SECURITIES TO BE ISSUED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ ACT ”), OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND ARE BEING
OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE LAWS. THE
WARRANT AND SUCH SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND THE LAWS OF
ANY APPLICABLE STATE OR OTHER JURISDICTION, OR AN EXEMPTION
THEREFROM, THE AVAILABILITY OF WHICH MUST BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
of
CHROMADEX, INC.
This certifies
that, for value received, [
], or its registered assigns (“ Holder ”), is
entitled, subject to the terms set forth below, to purchase from
ChromaDex, Inc., a California corporation (the “
Company ”), shares (the “ Warrant Shares
”) of Common Stock, no par value per share, of the Company
(“ Common Stock ”), subject to adjustment as set
forth herein, at an exercise price (the “ Exercise
Price ”) of $3.00 per Warrant Share, subject to
adjustment as set forth herein. This Warrant is one of a number of
similar Warrants being issued by the Company in connection with the
Company’s offering of up to 4,411,764 shares of Common Stock
and Warrants to purchase an additional 2,205,882 shares of Common
Stock pursuant to the terms of the Company’s Confidential
Private Placement Memorandum dated December 18, 2007 (the
“ PPM ”), together with the business plan of the
Company, a copy of which is attached to the PPM as
Appendix A.
1.
Term of Warrant . Subject to the terms and conditions set
forth herein, this Warrant shall only be exercisable, in whole or
in part, during the period (the “ Exercise Period
”) beginning on the date hereof (the “ Effective
Date ”) and ending on the fifth anniversary of the
Effective Date.
2. Exercise
of Warrant .
a. Subject to the terms and conditions set forth herein, the
purchase rights represented by this Warrant are exercisable by the
Holder in whole or in part, at any time, or from time to time,
during the Exercise Period, by the surrender of this Warrant and a
notice of exercise in the form attached hereto as Annex A
(the “ Notice of Exercise ”) duly completed and
executed by or on behalf of the Holder, at the principal executive
office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder),
and upon payment of the Exercise Price for each of the Warrant
Shares to be issued pursuant to such exercise (i) in cash or
other immediately available funds or (ii) by a cashless
exercise in accordance with Section 2(c). This Warrant may not
be exercised for less than 500 Warrant Shares at a time (or such
lesser number of Warrant Shares which may then constitute the
maximum number purchasable pursuant to this Warrant); such number
being subject to adjustment for stock splits, stock dividends,
mergers, reclassifications, recapitalizations and the like,
occurring on or after the date hereof.
b. This
Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the Warrant
Shares issuable upon such exercise shall be treated for all
purposes as the holder of record of such Warrant Shares as of the
close of business on such date. As promptly as practicable on or
after such date and in any event within 20 days thereafter,
the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates
for the number of Warrant Shares issuable upon such exercise. In
the event that this Warrant is exercised in part, the Company at
its expense will execute and deliver a new Warrant of like tenor
exercisable for the number of Warrant Shares for which this Warrant
may then be exercised.
c. Notwithstanding any provisions herein to the contrary, in
lieu of exercising this Warrant through the payment of the Exercise
Price with cash or other immediately available funds, the Holder
may elect to receive Warrant Shares with a value equal to the value
(as determined below) of this Warrant (or the portion thereof being
exercised) by surrender of this Warrant together with the properly
endorsed Notice of Exercise and notice of such election in which
event the Company shall issue to the Holder a number of Warrant
Shares computed using the following formula:
| |
|
|
|
|
|
|
|
|
|
|
|
X = |
|
Y (A-B)
A |
|
|
|
|
|
|
|
|
|
|
|
Where |
|
X = |
|
the number of Warrant Shares to be issued to
the Holder
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Y = |
|
the number of Shares purchasable
under the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being exercised |
|
|
|
|
|
|
|
|
|
|
|
|
|
A = |
|
the fair market value of one Warrant
Share (at the date of such calculation) |
|
|
|
|
|
|
|
|
|
|
|
|
|
B = |
|
Exercise Price |
For
purposes of the above calculation, the fair market value of one
Warrant Share shall mean, if the Common Stock is traded on a
national securities exchange, the Nasdaq Market System or the
over-the-counter market, the average of the last reported sales
price on the trading day immediately preceding the date of
valuation at which the Common Stock has traded on such national
securities exchange, the Nasdaq Market System or the average of the
bid and asked prices on the over-the-counter market on the date of
valuation. If the Common Stock is not publicly traded, the fair
market value per Warrant Share shall be determined by the Board of
Directors of the Company based upon the fair market value of the
Warrant Share if the Company were to be sold as a going concern and
without regard to any discount for the lack of liquidity or on the
basis that the relevant securities do not constitute a majority or
controlling interest in the Company.
3. No
Fractional Shares or Scrip . No fractional Warrant Shares or
scrip representing fractional Warrant Shares shall be issued upon
the exercise of this Warrant. In lieu of any fractional Warrant
Shares to which the Holder would otherwise be entitled, the Company
shall make a cash payment equal to the fair market value (as
defined above) of one Warrant Share multiplied by such
fraction.
4.
Replacement of Warrant . On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like
tenor and amount.
5.
Rights as Shareholders . The Holder, as a holder of this
Warrant, shall not be deemed the holder of Warrant Shares for any
purpose, nor shall anything contained herein be construed to confer
upon the Holder, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon
any matter submitted to shareholders at any meeting thereof, or to
give or withhold consent to any corporate action or to receive
notice of meetings, or to receive dividends or subscription rights
or otherwise until this Warrant shall have been exercised as
provided herein.
6. Transfer
of Warrant .
a.
Warrant Register . The Company will maintain a register (the
“ Warrant Register ”) containing the names and
addresses of the Holder or Holders. Any Holder of this Warrant or
any portion thereof may change its address as shown on the Warrant
Register by written notice to the Company requesting such change.
Any notice or written communication required or permitted to be
given to the Holder may be delivered or given by mail to such
Holder as shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the
Warrant Register of the Company, the Company may treat the Holder
as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes, notwithstanding any notice to the
contrary.
b.
Transferability and Nonnegotiability of Warrant . This
Warrant may not be transferred or assigned in whole or in part
without compliance with (i) Section 4 (Right of First
Refusal) of the Subscription Agreement dated
, 200_____, by and between Holder and the Company, and
(ii) all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory
to the Company, if such are requested by the Company). Subject to
such compliance, title to this Warrant may be transferred by
endorsement by the Holder executing the assignment form attached
hereto as Annex B (the “ Assignment Form
”) and delivery in the same manner as a negotiable instrument
transferable by endorsement and delivery.
c.
Exchange of Warrant Upon a Transfer . Upon surrender of this
Warrant for exchange, properly endorsed on the Assignment Form and
subject to compliance with the other provisions of this
Section 6, the Company at its expense shall issue to or on the
order of the transferee a new warrant or warrants of like tenor, in
the name of the transferee or as the transferee may direct, for the
number of Warrant Shares then issuable upon exercise hereof.
7.
Reservation of Shares . The Company covenants that, during
the term this Warrant is exercisable, the Company will reserve from
its authorized and unissued shares of Common Stock a sufficient
number of shares of
|
