EXHIBIT 4.4
THIS OPTION AND THE SHARES ISSUABLE UPON EXERCISE OF THIS OPTION HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN
RELIANCE UPON THE EXEMPTIONS CONTAINED IN THE ACT. THIS OPTION AND ANY SHARES
ISSUED UPON EXERCISE OF THIS OPTION MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) REGISTERED UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS; (ii) PURSUANT TO RULE 144 UNDER
SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES); OR (iii) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
eDiets.com, Inc.
Option to Purchase 32,500 Shares of Common Stock
Par value $.001 per share
Dated November 17, 1999
Void after 5:00 p.m., Florida Local Time
November 17, 2004, or if not a business day,
at 5:00 p.m., Florida Local Time, on
the next following business day
THIS CERTIFIES that, Isaac Kier is the registered holder of options to
purchase at any time commencing November 17, 1999 through 5:00 P.M. Florida
local time on November 17, 2004, (the "Exercise Period"), 32,500 shares (the
"Option Shares") of fully paid and nonassessable common stock, par value $.001
per share(the "Common Stock"), of eDiets.com, Inc. (the "Company") at $1.425 per
share (the "Exercise Price"). The Exercise Price is subject to adjustment as
provided for herein. This option and any option subsequently issued upon
exchange hereof are hereinafter collectively referred to as the "Option."
Section 1. Exercise of option. (a) This option is exercisable
at anytime, from time to time, during the Exercise Period at the option of the
Holder at the Exercise Price per Option Share purchased, payable in cash, by
wire transfer or by check to the order of the Company, or any combination
thereof, subject to adjustment as provided herein. Upon surrender of this Option
with the annexed Purchase Form duly executed and dated, together with payment of
the Exercise Price for the Option Shares purchased, at the Company's principal
offices (currently located at 3467 W. Hillsboro Boulevard, Deerfield Beach,
Florida 33442) the Holder of this Option shall be entitled to receive a
certificate or certificates for the Option Shares so purchased. The purchase
rights represented by this Option are exercisable at the option of the Holder
hereof, in whole or in part (but not as to fractional Option Shares). In the
case of the purchase of less than all Option Shares purchasable under this
Option, the Company shall cancel said Option upon the surrender thereof and
shall execute and deliver a new Option of like tenor for the balance of the
Option Shares purchasable thereunder.
Section 2. Issuance of Certificates. Upon the exercise of all
or part of the Option, the issuance of certificates for the Option Shares
purchased pursuant to such exercise shall be made forthwith, and such
certificates shall (subject to the provisions of Section 3 hereof) be issued in
the name of, or in such names as may be directed by, the
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Holder thereof; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any such certificates in a name other than that of the Holder
and the Company shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
This Option and, upon exercise of the Option, the certificates
representing the Option Shares shall be executed on behalf of the Company by the
manual or facsimile signature of those officers required to sign such
certificates under applicable law.
This Option and, upon exercise of the Option, in part or in whole,
certificates representing the Warrant Shares shall bear a legend substantially
similar to the following.
"The securities represented hereby have not been registered
under the Securities Act of 1933, as amended (the "Act"), and
may not be offered or sold except (i) pursuant to an effective
registration statement under the Act; or (ii) upon the
delivery by the holder to the Company of an opinion of
counsel, reasonably satisfactory to counsel for the Company,
stating that an exemption from registration under such Act is
available."
Section 3. Restriction on Transfer of Option. The Holder of
this Option, by its acceptance thereof, covenants and agrees that the Option and
the Option Shares issuable upon exercise of the Option is being acquired as an
investment and not with a view to the distribution thereof and that the Option
and the Option Shares may not be transferred unless such securities are either
registered under the Act and any applicable state securities law or an exemption
from such registration is available. In connection with any purchase of Option
Shares, the Holder agrees to execute any documents which may be reasonably
required by counsel to the Company to comply with the provisions of the Act and
applicable state securities laws.
Section 4. Adjustment of Number of Shares Subject to the
Option. Upon any adjustment of the Exercise Price pursuant to Section 5 hereof,
the Holder shall thereafter be entitled to purchase, at the adjusted Exercise
Price, the number of Option Shares (calculated to the nearest share) obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Option Shares purchasable pursuant hereto immediately prior to
such adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
Section 5. Adjustment of Exercise Price. If at any time after
the date of grant of this Option the Company shall engage in a split-up,
subdivision or combination or exchange of its Common Stock, then the number of
shares covered by this Option and the Exercise Price shall be proportionately
adjusted for any such change by the Board of Directors of the Company whose
determination shall be conclusive. Notwithstanding the foregoing, the Company
will not take any action which results in any adjustment of the Exercise Price
if the total number of shares of Common Stock issued and issuable after such
action upon exercise of this Option would exceed the total number of shares of
Common Stock then authorized by the Company's Articles of Incorporation.
Section 6. Reclassification, Merger, etc. In the case of any
reclassification of the Common Stock or in the case of any consolidation or
merger of the Company with or
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into another corporation (other than a merger with another corporation in which
the Company is the surviving corporation and which does not result in any
reclassification of the Common Stock) or in the case of any sale of all or
substantially all of the assets of the Company, then the Company, or such
successor or purchasing corporation, as the case may be, shall execute a new
Option Certificate, providing that the Holder shall have the right to exercise
such new option (the "New Option") and upon such exercise to receive, in lieu of
each share of Common Stock theretofore issuable upon exercise of this Option,
the number and kind of shares of stock, other securities, money or property
receivable upon such reclassification, change, consolidation or merger by a
holder of shares of the Common Stock with respect to one share of Common Stock.
Such New Option certificate shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for herein.
The provisions of this Section 4 shall similarly apply to successive
reclassifications, changes, consolidations or mergers.
Section 7. No Stockholder Rights or Liabilities. This Option
shall not entitle the Holder to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Holder and no mere enumeration herein of the rights or privileges
of the Holder, shall give rise to any liability of the Holder for the Exercise
Price or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
Section 8. Registration Rights. The Company will include the
Option Shares in a registration statement which the Company will prepare and
file with the Securities and Exchange Commission (the "SEC") under the Act as
soon as possible, but, in any event, within 12 months following the date of this
Option and use its best efforts to have declared effective by the SEC as soon as
possible but, in any event, within 15 months following the date of this Option.
Section 9. Lost, Stolen, Mutilated or Destroyed Option. If
this Option is lost, stolen, mutilated or destroyed, the Company may, on such
terms as to indemnity or otherwise as it may in its discretion reasonably impose
(which shall, in the case of a mutilated Option, include the surrender thereof),
issue a new Option of like denomination and tenor as the Option so lost, stolen,
mutilated or destroyed.
Section 10. Governing Law. The Company, and by acceptance of
this Option, the Holder each hereby acknowledge and agree that the option
granted hereby is granted in the State of Florida. This Agreement, as well as
the grant of such option and issuance of such Option Shares, is and shall be
governed by and construed in accordance with the laws of the State of Florida
applicable to agreements made and to be performed entirely within such State.
Section 11. Miscellaneous. This Option Certificate shall be
binding upon and inure to the benefit of the Company and its successors and upon
the Holder and its successors and permitted assigns.
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IN WITNESS WHEREOF, eDiets.com, Inc. has executed this option
on and as of the day and year first above written.
EDIETS.COM, INC.
By: /s/ David R. Humble
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Name: David R. Humble
Title: Chairman and Chief Executive Officer
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the attached Option
Certificate, to purchase __________ shares of the Common Stock of eDiets.com,
Inc. and herewith tenders, in payment for such shares, cash or a check payable
to the order of the Company, or a combination thereof, in the amount of
$_______________ all in accordance with the terms hereof. The undersigned
requests that a certificate for such shares be registered in the name of
____________________________________________________________________ whose
address is ___________________________________________________________________,
and that such certificate be delivered to
________________________________________, whose address is____________________ .
Dated: __________________________ Signature: ______________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Option Certificate)
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(Insert Social Security or other
Identifying number of Holder)
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