EXHIBIT 4.3
MEDICAL NUTRITION USA, INC.
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY,
AS WARRANT AGENT
CLASS A
WARRANT AGREEMENT
DATED AS OF
JUNE __, 2005
MEDICAL NUTRITION USA, INC.
CLASS A WARRANT AGREEMENT
THIS CLASS A 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 A 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 A
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
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Company, countersign such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
(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 $0.50 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
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opened, and until such 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.
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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
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exchangeable for common 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
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of a Warrant Certificate at such holder's address as it shall appear on the
books of the Warrant Agent.
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
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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.
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
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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.
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
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reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(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.
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(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
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shall be a party, or any corporation to 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 A WARRANT AGREEMENT]
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EXHIBIT A
FORM OF CLASS A WARRANT CERTIFICATE
[FACE OF CLASS A 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 A 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 $0.50, 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
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hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent.
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:
________________________________ _________________________________________
________________________________
(Insert Social Security or Other Signature Guaranteed:_____________________
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
________________________________
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