EXHIBIT 4.4
MEDICAL NUTRITION USA, INC.
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY,
AS WARRANT AGENT
CLASS B
WARRANT AGREEMENT
DATED AS OF
JUNE __, 2005
MEDICAL NUTRITION USA, INC.
CLASS B WARRANT AGREEMENT
THIS CLASS B WARRANT AGREEMENT, dated as of June __, 2005 (this
"Agreement"), by and between MEDICAL NUTRITION USA, INC., a Delaware corporation
(the "Company") and American Stock Transfer and Trust Co., a corporation
organized and existing under the laws of New York and having a corporate trust
office in New York, as warrant agent (the "Warrant Agent").
WHEREAS, the Company has previously issued certain warrants to purchase
common stock, and the Company and the holders of such warrants desire to amend
and restate the terms of such warrants to those of the Class B Warrants set
forth in this Agreement (the "Warrants"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the certificates representing the Class B
Warrants (the "Warrant Certificates") and the terms and conditions on which they
may be issued, registered, transferred, exchanged, exercised and replaced.
NOW THEREFORE, in consideration of the foregoing premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
EXECUTION, ISSUANCE AND DELIVERY OF WARRANT CERTIFICATES
1.1. Execution, Issuance of Warrant Certificates.
-------------------------------------------
(a) Each Warrant Certificate, whenever issued, shall be in
registered form substantially in the form set forth in Exhibit A hereto, shall
be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by any
of its present or future chief executive officers, presidents, senior vice
presidents, vice presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant controllers,
secretaries or assistant secretaries under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
(b) No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
(c) In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
1.2. Issuance and Delivery of Warrant Certificates.
---------------------------------------------
(a) Warrant Certificates evidencing the right to purchase shares
of the Company's common stock, $0.001 par value per share (the "Common Stock,"
and such shares of Common Stock, the "Warrant Securities"), may be executed by
the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
2
(b) The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name the applicable Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose.
ARTICLE 2
STRIKE PRICE, DURATION AND EXERCISE OF WARRANTS
2.1. Strike Price. During the period specified in Section 2.2, each
Warrant Certificate shall, subject to the terms of this Warrant Agreement and
the applicable Warrant Certificate, entitle the holder thereof to initially
purchase the number of Warrant Securities specified in the applicable Warrant
Certificate at an initial exercise price of $0.75 per Warrant Security, subject
to adjustment upon the occurrence of certain events, as hereinafter provided.
Such purchase price per Warrant Security is referred to in this Agreement as the
"Strike Price."
2.2. Duration of Warrants. Each Warrant may be exercised in whole
or in part at any time, as specified herein, on or after the date thereof and at
or before 5:00 p.m., New York City time, on July 31, 2006, or such later date as
the Company may designate by notice to the Warrant Agent and the holders of
Warrant Certificates mailed to their addresses as set forth in the books and
records of the Warrant Agent (the "Expiration Date"). Each Warrant not exercised
at or before 5:00 p.m., New York City time, on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate evidencing each
such Warrant under this Agreement shall terminate.
2.3. Exercise of Warrants.
--------------------
(a) During the period specified in Section 2.2, the Warrants may
be exercised to purchase a whole number of Warrant Securities in registered form
by providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United States of
America, by check or bank wire transfer in immediately available funds, the
Strike Price for each Warrant Security with respect to which the applicable
Warrants are being exercised to the Warrant Agent at its corporate trust office.
The date on which payment in full of the Strike Price is received by the Warrant
Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be
deemed to be the date on which the Warrant is exercised; provided, however, that
if, at the date of receipt of such Warrant Certificates and payment in full of
the Strike Price, the transfer books for the Warrant Securities purchasable upon
the exercise of such Warrants shall be closed, no such receipt of such Warrant
Certificates and no such payment of such Strike Price shall be effective to
constitute the person so designated to be named as the holder of record of such
Warrant Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Securities for all purposes at
the opening of business on the next succeeding day on which the transfer books
for the Warrant Securities purchasable upon the exercise of such Warrants shall
be opened, and the certificates for the Warrant Securities in respect of which
such Warrants are then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened, and until such
3
date the Company shall be under no duty to deliver any certificate for such
Warrant Securities. The Warrant Agent shall deposit all funds received by it in
payment of the Strike Price in an account of the Company maintained with it and
shall advise the Company by e-mail at the end of each day on which a payment for
the exercise of Warrants is received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such telephone advice to the Company in
writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of: (i) the number of Warrant Securities with
respect to which Warrants have been exercised, (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the Warrant Securities to which such holder is entitled upon such
exercise, (iii) the instructions of each holder of the Warrant Certificate
evidencing such Warrants with respect to delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants for the remaining Warrant
Securities after such exercise, and (iv) such other information as the Company
shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the
Company shall issue, or cause to be issued, to or upon the order of the holder
of the Warrant Certificate evidencing such Warrants the Warrant Securities to
which such holder is entitled, in fully registered form, registered in such name
or names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall countersign and deliver, a
new Warrant Certificate evidencing Warrants for the number of Warrant Securities
remaining unexercised.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities, and in the event that
any such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been paid
or it has been established to the Company's satisfaction that no such tax or
other charge is due.
(e) The Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Securities, a number
of shares sufficient to provide for the exercise of the Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
3.1. No Rights As Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to exercise any
voting rights, except to the extent expressly set forth in this Agreement or the
applicable Warrant Certificate.
4
3.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant Certificate and/or indemnity reasonably satisfactory to the
Warrant Agent and the Company and, in the case of mutilation, upon surrender of
the mutilated Warrant Certificate to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated
Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing
Warrants for a like number of Warrant Securities. Upon the issuance of any new
Warrant Certificate under this Section 3.2, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section 3.2 in lieu of any
lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 3.2 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3. Holder of Warrant Certificate may Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such holder's right to exercise the Warrants
evidenced by such holder's Warrant Certificate in the manner provided in such
holder's Warrant Certificate and in this Agreement.
3.4. Adjustment Upon Qualified Financing. If, pursuant to a
Qualifying Equity Financing (as defined below), the Company sells: (i) common
stock (or any instrument convertible, exercisable or exchangeable for common
stock) at a price per share (or exercise price or conversion price, as the case
may be) less than the Strike Price, then each Warrant Certificate shall be
automatically deemed adjusted such that each such Warrant Certificate shall
thereafter represent Warrants to purchase the same number of shares of Warrant
Securities but at a price per share equal to the price per share (or exercise
price or conversion price, as the case may be) of common stock offered in the
Qualifying Equity Financing; or (ii) preferred stock (or any instrument
convertible, exercisable or exchangeable for preferred stock) at a price per
share (or exercise price or conversion price, as the case may be) equal to or
less than the Strike Price, then each Warrant Certificate shall be adjusted such
that each such Warrant Certificate shall thereafter represent Warrants to
purchase the same number of shares but of the preferred stock offered in the
Qualified Financing at a price per share equal to the price per share (or
exercise price or conversion price, as the case may be) offered in the
Qualifying Equity Financing. A "Qualifying Equity Financing" shall mean an
equity financing in which the Company sells shares of common stock or preferred
stock (or any instrument convertible, exercisable or exchangeable for common
5
stock or preferred stock) and obtains net proceeds (including conversion of all
outstanding convertible notes) in an amount not less than Two Million Dollars
($2,000,000).
3.5. Adjustment Upon Stock Splits, Dividends, Etc.
--------------------------------------------
(a) If the Company shall at any time after the date hereof
subdivide its outstanding shares of Common Stock (or other securities at the
time receivable upon the exercise of a Warrant) by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Warrants evidenced by each Warrant Certificate immediately prior to such
subdivision shall be automatically deemed to be proportionately increased, and
if the Company shall at any time combine the outstanding shares of Common Stock
(or other securities at the time receivable upon the exercise of a Warrant) by
recapitalization, reclassification or combination thereof, the number of
Warrants evidenced by the applicable Warrant Certificate immediately prior to
such combination shall be automatically deemed to be proportionately decreased.
(b) Whenever the number of Warrants is adjusted, as provided in
this Section 3.5, the Strike Price shall be adjusted to the nearest whole cent
by multiplying such Strike Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Warrant
Securities purchasable upon the exercise immediately prior to such adjustment,
and (y) the denominator of which shall be the number of Warrant Securities so
purchasable immediately thereafter. Any such adjustment to the Strike Price
pursuant to this Section shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date thereof.
3.6. Adjustment for Reorganization, Consolidation, Merger, Etc. In
case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of a Warrant)
after the date hereof, or in case after such date the Company (or any such other
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation, then, and in each
such case, the holder of a Warrant Certificate upon the exercise thereof at any
time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the securities and property
receivable upon the exercise of Warrants prior to such consummation, the
securities or property to which such holder would have been entitled upon such
consummation if such holder had exercised such Warrants immediately prior
thereto; in each such case, the terms of this Agreement shall be applicable to
the securities or property received upon the exercise of such Warrants after
such consummation.
3.7. Certificate as to Adjustments. In each case of an adjustment
in the number of Warrants evidenced by a Warrant Certificate and/or the Strike
Price, the Company, at its expense, shall promptly compute such adjustment in
accordance with the terms of this Agreement and prepare a certificate executed
by an officer of the Company setting forth such adjustment and showing the facts
upon which such adjustment is based. The Company shall forthwith mail a copy of
each such certificate to the Warrant Agent and to each holder of record of a
Warrant Certificate at such holder's address as it shall appear on the books of
the Warrant Agent.
6
3.8. Notices of Record Date, etc. In case:
----------------------------
(a) the Company shall take a record of the holders of its Warrant
Securities (or other securities at the time receivable upon the exercise of a
Warrant) for the purpose of entitling them to receive any dividend (other than a
cash dividend at the same rate as the rate of the last cash dividend theretofore
paid) or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities, or
to receive any other right; or
(b) of any voluntary or involuntary dissolution, liquidation or
winding-up or a reorganization, reclassification, consolidation or merger of the
Company, then, and in each such case, the Company shall mail or cause to be
mailed to each holder of a Warrant Certificate a notice specifying, as the case
may be: (A) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (B) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, to be fixed, as to which the
holders of record of Warrant Securities (or such other securities at the time
receivable upon the exercise of a Warrant) shall be entitled to exchange their
shares of Warrant Securities (or such other securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such notice shall be
mailed at least twenty (20) days prior to the date therein specified, and each
Warrant may be exercised prior to said date provided that such date is prior to
the Expiration Date.
3.9. Threshold for Adjustments. Anything in this Section to the
contrary notwithstanding, the Company shall not be required to give effect to
any adjustment of the Strike Price until the cumulative resulting adjustment in
the Strike Price pursuant to this Section shall have required a change of the
Strike Price by at least $0.01. No adjustment shall be made by reason of the
issuance of shares upon conversion rights, stock issuance rights or similar
rights currently outstanding or any change in the number of treasury shares held
by the Company.
3.10. Acceleration of Warrants by the Company. The Company may, at
its option, require that all the outstanding Warrants be exercised by the
holders thereof, but only if any reported sale price of the Common Stock has
been at or above $4.00 per share (subject to equitable adjustment in the case of
stock splits, combinations or similar events) for any ten (10) consecutive
Trading Days (as defined below) during the thirty day period immediately
preceding the date notice of the Company's decision to exercise such option is
first sent to the Warrant Agent and the Warrant holders. Warrant holders have
forty-five (45) days from the date such notice is first sent to properly
exercise their Warrants. Any Warrants that are not properly exercised before the
expiration of such forty-five (45) day period shall be void with respect to the
subsequent issuance of Warrant Securities and all rights under this Agreement of
a holder of the Warrant Certificate evidencing any such Warrant shall terminate.
For purposes of this Section 3.10, "Trading Day" means any Monday through Friday
that the OTC Bulletin Board (or any exchange or automated quotation system on
which the Common Stock may then be listed or traded) is open for trades with
respect to the Common Stock.
7
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1. Exchange and Transfer of Warrant Certificates. Upon surrender
at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other
denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence
Warrants for the same aggregate number of Warrant Securities as the Warrant
Certificates so surrendered. The Warrant Agent shall keep, at its corporate
trust office, books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall countersign and deliver to the person or persons
entitled thereto a Warrant Certificate or Warrant Certificates duly authorized
and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in
the issuance of a Warrant Certificate evidencing a Warrant for a fraction of a
Warrant Security or a number of Warrants for a whole number of Warrant
Securities and a fraction of a Warrant Security. The Company shall not be
required to issue stock certificates representing fractions of shares, nor shall
it be required to issue script or pay cash in lieu of fractional interests, it
being the intent of the parties that all fractional interests shall be
eliminated. All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations and entitled to the same benefits under this
Agreement as the Warrant Certificate surrendered for such exchange or
registration of transfer.
4.2. Treatment of Holders of Warrant Certificates. The Company, the
Warrant Agent and all other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
4.3. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange thereof or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
8
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1. Warrant Agent. The Company hereby appoints American Stock
Transfer and Trust Co. as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and American Stock Transfer and Trust Co. hereby
accepts such appointment. The Warrant Agent shall have the powers and authority
granted to and conferred upon it in this Agreement and the Warrant Certificates
and such further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
5.2. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred without negligence, bad faith or willful misconduct by the Warrant
Agent in connection with the services rendered hereunder by the Warrant Agent.
The Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Warrant Agent, arising out of
or in connection with its acting as Warrant Agent hereunder, including the
reasonable costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, which may include counsel for the Company, and the written
advice of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
9
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as trustee
under any indenture to which the Company is a party.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated
to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.
5.3. Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the holders from time
to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
10
(b) The Warrant Agent may at any time resign as agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.2(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or under any other applicable Federal or
state bankruptcy, insolvency or similar law or shall consent to the appointment
of or taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
11
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
6.1. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not materially adversely affect the interests of the holders of the
Warrant Certificates. This Agreement may otherwise be amended only with the
written consent of holders holding in the aggregate 66 2/3% of the Warrants then
outstanding, but in no event may the Strike Price or the Expiration Date of a
Warrant issued hereunder be changed (other than as provided by this Agreement)
without the express written consent of the holder of such Warrant.
6.2. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
6.3. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to Medical Nutrition USA, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Executive Officer (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
6.4. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to its conflicts of laws principles.
6.5. Obtaining of Governmental Approvals. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities act filings under United States Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrants or upon the
expiration of the period during which the Warrants are exercisable.
12
6.6. Entire Agreement. This Agreement and the Warrant Certificate
embody the entire agreement between the Company, the Warrant Agent and the
holders of the Warrant Certificates with respect to the Warrants and the matters
provided for herein and therein, and supercedes and replaces any prior
understanding, agreement or statement of intent with respect to the transactions
and matters contemplated or provided for herein, and there are no agreements,
representations or warrants between the parties other than those set forth or
provided for herein.
6.7. Persons Having Rights Under Warrant Agreement. Nothing in this
Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement.
6.8. Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
[Remainder of Page Intentionally Left Blank]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
MEDICAL NUTRITION USA, INC.
By: _____________________________________
Its:_____________________________________
Attest:
__________________________________
__________________________________
AMERICAN STOCK TRANSFER AND TRUST CO.
By: _____________________________________
Its:_____________________________________
Attest:
__________________________________
__________________________________
[SIGNATURE PAGE TO CLASS B WARRANT AGREEMENT]
14
EXHIBIT A
FORM OF CLASS B WARRANT CERTIFICATE
[FACE OF CLASS B WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M., EASTERN TIME, ON JULY 31, 2006,
MEDICAL NUTRITION USA, INC.
WARRANT CERTIFICATE REPRESENTING
CLASS B WARRANTS TO PURCHASE
COMMON STOCK
No._________ ____________Warrants
This certifies that ___________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time after the date hereof and on or before 5:00 p.m.,
New York City time, on July 31, 2006, one (1) share of Common Stock, par value
$0.001 per share, (the "WARRANT SECURITIES"), of Medical Nutrition USA, Inc.
(the "COMPANY") at an exercise price per Warrant Security of $0.75, subject to
adjustment as provided in the Warrant Agreement (as hereinafter defined) (the
"STRIKE PRICE"). The Holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in
full, in lawful money of the United States of America, by bank wire transfer in
immediately available funds, the Strike Price for each Warrant Security with
respect to which this Warrant is exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on
the back hereof duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the "Warrant Agent"), which is, on
the date hereof, at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "Holder" as used herein shall mean the person in whose name,
at the time, this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the
Warrant Agreement.
The Warrants evidenced by this Warrant Certificate may be exercised to
purchase a whole number of Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of June __, 2005, between the Company and the Warrant
Agent (the "Warrant Agreement") and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent.
1
Transfer of this Warrant Certificate may be registered when this
Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent by the registered owner or such owner's assigns, in the manner and subject
to the limitations provided in the Warrant Agreement.
After countersignature by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates
representing Warrants for the same aggregate number of Warrant Securities.
This Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities (except to the extent set forth in the Warrant Agreement) or
to exercise any voting rights.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to its
conflicts of laws principals.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: MEDICAL NUTRITION USA, INC.
By: _____________________________________
Its:_____________________________________
Attest:
__________________________________
__________________________________
Counter signed:
_________________________________________
As Warrant Agent
By: _____________________________________
Authorized Signature
2
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced hereby for Warrant Securities (as
hereinafter defined), the Holder must pay, in lawful money of the United States
of America, by bank wire transfer in immediately available funds, the Strike
Price in full for Warrants exercised, to American Stock Transfer and Trust Co.,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust, which payment
must specify the name of the Holder and the number of Warrants exercised by such
Holder. In addition, the Holder must complete the information required below and
present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth
above. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise _________________
Warrants, evidenced by this Warrant Certificate, to purchase _____________
shares of the Common Stock, par value $0.001 per share, (the "Warrant
Securities"), of Medical Nutrition USA, Inc. and represents that the undersigned
has tendered payment for such Warrant Securities, in lawful money of the United
States of America, by bank wire transfer in immediately available funds, to the
account of Medical Nutrition USA, Inc., maintained by the Warrant Agent
([account information]), in the amount of $____________ in accordance with the
terms hereof. The undersigned requests that said Warrant Securities be in fully
registered form in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the number of Warrant Securities remaining
unexercised be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated: _________________________ Name: __________________________________
Address:
________________________________ Signature: ______________________________
________________________________
________________________________ Signature Guaranteed:____________________
(Insert Social Security or Other
Identifying Number of Holder)
3
ASSIGNMENT
[Form of assignment to be executed if Warrant Holder
desires to transfer Warrant)
FOR VALUE RECEIVED, __________________ hereby sells, assigns and transfers unto:
________________________________
________________________________
________________________________ _________________________________________
(Please print name and address Please insert Social Security or
including zip code) Tax payer identification number
the right represented by the within Warrant to purchase shares of Common Stock,
par value $0.001 per share, of Medical Nutrition USA, Inc. to which the within
Warrant relates and appoints attorney to transfer such right on the books of the
Warrant Agent with full power of substitution in the premises.
Dated: _________________________ _________________________________________
Signature
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant)
Signature Guaranteed
________________________________
4