EXHIBIT 4.15




 




WARRANT




 




THIS WARRANT HAS BEEN ISSUED AND THE

SHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT TO THE EXERCISE OF THE

RIGHTS UNDER THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR

DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS

AMENDED.  SUCH SECURITIES MAY NOT BE

SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE

ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH

ACT UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE,

OFFER, PLEDGE, HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION.




 




WARRANT

TO PURCHASE SHARES OF COMMON STOCK




OF




HEALTHETECH,

INC.




 




Dated

as of March 26, 2003




 




	

  No.  CS-11


  	

   


  	

  Warrant to Purchase


  
	

   


  	

   


  	

  4,000 Shares of


  
	

   


  	

   


  	

  Common Stock of the Company


  
	

   


  	

   


  	

  (subject to adjustment)


  





 




THIS CERTIFIES THAT, for value received, Gary Foster

(the “Holder”)

is entitled, subject to the terms and conditions set forth below, to purchase

from HealtheTech, Inc., a Delaware corporation (the “Company”), up to four

thousand (4,000) shares of the Company’s Common Stock, $0.001 par value per

share (the “Shares”), in the amounts and at the price per share set forth

in Section 1 below, subject to the provisions and upon the terms and conditions

set forth herein.  The term “Warrant”

as used herein shall include this Warrant and any warrants delivered in

substitution or exchange therefore as provided herein.




 




1.                                       Number,

Price and Expiration of the Shares. 

The Holder shall have the

right to purchase up to a total of four thousand (4,000) of the Shares (as may

be adjusted pursuant hereto), at an exercise price of $1.80 per share, which

right shall terminate, to the extent not exercised, at 5:00 p.m., Mountain

Time, on March 25, 2008.




 




2.                                       Exercise

of Warrant.




 




(a)                                  Exercise.  The purchase rights represented by this

Warrant may be exercised at the election of the Holder, in whole or in part, in

accordance with Section 1 and prior to the expiration of this Warrant, by

(i) the tender to the Company at its principal office (or such other office or

agency of the Company as it may designate by notice in writing to the Holder at

the address of the Holder appearing on the books of the Company) of a notice of

exercise in the form attached hereto as Exhibit A

(the “Notice

of Exercise”), duly completed and executed on




 




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behalf of the Holder, together with the surrender of this Warrant, and

(ii) the payment to the Company of an amount equal to the applicable exercise

price(s) multiplied by the number of Shares being purchased by wire transfer or

certified, cashier’s or other check acceptable to the Company and payable to

the order of the Company.




 




(b)                                 Stock

Certificates.  The rights under this

Warrant shall be deemed to have been exercised and the Shares shall be deemed

to have been issued immediately prior to the close of business on the date of

its tender for exercise as provided above, and the person entitled to receive

the Shares issuable upon such exercise shall be treated for all purposes as the

holder of record of such Shares as of the close of business on such date.  As promptly as reasonably practicable on or

after such date, the Company shall direct the Company’s transfer agent to issue

and deliver to the person or persons entitled to receive the same a certificate

or certificates for that number of shares issuable upon such exercise.  In the event that the rights under this

Warrant are exercised in part and have not expired, the Company shall execute and

deliver a new Warrant with the same terms and conditions for the number of

Shares that remain subject to this Warrant.




 




(c)                                  Taxes.  In no event shall the Company be required to

pay any tax which may be payable in respect of any transfer involved in the

issue and delivery of any certificate in a name other than that of the Holder,

and the Company shall not be required to direct the Company’s transfer agent to

issue or deliver any such certificate unless and until the person or persons

requesting the issue 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.




 




 




3.                                       No

Fractional Shares or Scrip.  No

fractional shares or scrip representing fractional shares shall be issued upon

the exercise of the rights under this Warrant. 

In lieu of such fractional share to which the Holder would otherwise be

entitled, the Company shall make a cash payment equal to the applicable exercise

price(s) multiplied by such fraction.




 




4.                                       Replacement

of Warrant.  On receipt of evidence

reasonably satisfactory to the Company of the loss, theft, destruction or

mutilation of this Warrant and, in the case of loss, theft or destruction, on

delivery of an indemnity agreement reasonably satisfactory in form and

substance to the Company or, in the case of mutilation, on surrender and

cancellation of this Warrant, the Company at the expense of the Holder shall

execute and deliver, in lieu of this Warrant, a new warrant of like tenor and

amount.




 




5.                                       Representations

and Warranties of the Holder.




 




(a)                                  Investment

Intent.  The Holder is acquiring the

Warrant and the Shares issuable upon exercise of the Warrant, for investment

for his own account, not as a nominee or agent, and not with the view to, or for

resale in connection with, any distribution thereof.




 




(b)                                 Investment

Experience.  The Holder has

substantial experience in evaluating and investing in private placement

transactions of securities in companies similar to the Company so that he is

capable of evaluating the merits and risks of his investment in the Company and

has the capacity to protect his own interests.




 




(c)                                  Speculative

Nature of Investment.  The Holder

acknowledges that his investment in the Company is highly speculative and

entails a substantial degree of risk and the Holder is in a position to lose

the entire amount of such investment.




 




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(d)                                 Access

to Data.  The Holder has had an

opportunity to discuss the Company’s business, management and financial affairs

with the Company’s management.  The

Holder has also had an opportunity to ask questions of officers of the Company,

which questions were answered to his satisfaction.  The Holder understands that such discussions, as well as any information

issued by the Company, were intended to describe certain aspects of the

Company’s business and prospects, but were not necessarily a thorough or

exhaustive description.  The Holder

acknowledges that any business plans prepared by the Company have been, and

continue to be, subject to change and that any projections included in such

business plans or otherwise are necessarily speculative in nature, and it can

be expected that some or all of the assumptions underlying the projections will

not materialize or will vary significantly from actual results.




 




(e)                                  Accredited

Investor.  The Holder is an

“accredited investor” within the meaning of Regulation D,

Rule 501(a), promulgated by the Securities and Exchange Commission under

the Securities Act of 1933, as amended (the “Securities

Act”).




 




(f)                                    Residency.  The residency of the Holder is correctly set

forth on the signature page hereto.




 




(g)                                 Restriction

on Resales.  The Holder acknowledges

that the Warrant and the Shares issuable upon exercise of the Warrant must be

held indefinitely unless subsequently registered under the Securities Act or

unless an exemption from such registration is available.  The Holder further understands that there is

no assurance that any exemption from registration under the Securities Act will

be available or, if available, that such exemption will allow the Holder to

dispose of or otherwise transfer this Warrant or any portion hereof and any

Shares issuable pursuant to the exercise of the rights under this Warrant under

the circumstances, in the amounts or at the times the Holder might propose.




 




(h)                                 Rule

144.  The Holder is aware of the

provisions of Rule 144 promulgated under the Securities Act which permit

limited resale of shares purchased in a private placement subject to the satisfaction

of certain conditions, including among other things, the existence of a public

market for the shares, the availability of certain current public information

about the Company, the resale occurring not less than one year after a party

has purchased and paid for the security to be sold, the sale being effected

through a “broker’s transaction” or in transactions directly with a “market

maker” and the number of shares being sold during any three-month period not

exceeding specified limitations.  The Holder

acknowledges that, in the event all of the requirements of Rule 144 are

not met, registration under the Securities Act or an exemption from

registration will be required for any disposition of the Securities.  The Holder understands that, although Rule 144

is not exclusive, the Securities and Exchange Commission has expressed its

opinion that persons proposing to sell restricted securities received in a

private offering other than in a registered offering or pursuant to

Rule 144 will have a substantial burden of proof in establishing that an

exemption from registration is available for such offers or sales and that such

persons and the brokers who participate in the transactions do so at their own

risk.




 




(i)                                     Authorization.




 




(i)                               The

Holder has all requisite power and authority to execute and deliver this

Warrant, to purchase the Shares issuable upon exercise of the rights under this

Warrant and to carry out and perform his obligations under the terms and

conditions of this Warrant.  All action

on the part of the Holder necessary for the authorization, execution, delivery

and performance of this Warrant, and the performance of all of the Holder’s

obligations under this Warrant, has been taken or will be taken prior to the

purchase of this Warrant.




 




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(ii)                            This

Warrant, when executed and delivered by the Holder, will constitute a valid and

legally binding obligation of the Holder, enforceable in accordance with its

terms except: (i) as limited by applicable bankruptcy, insolvency,

reorganization, moratorium and other laws of general application affecting

enforcement of creditors’ rights generally, and (ii) as limited by laws

relating to the availability of specific performance, injunctive relief or

other equitable remedies or by general principles of equity.




 




(iii)                               No consent, approval,

authorization, order, filing, registration or qualification of or with any

court, governmental authority or third person is required to be obtained by the

Holder in connection with the execution and delivery of this Warrant or the

performance of the Holder’s obligations hereunder.




 




(j)                                     Brokers

and Finders.  The Holder has not

engaged any brokers, finders or agents in connection with this Warrant, and the

Company has not incurred and will not incur, directly or indirectly, as a

result of any action taken by the Holder, any liability for brokerage or

finders’ fees or agents’ commissions or any similar charges in connection with

this Warrant.




 




(k)                                  Investor

Counsel.  The Holder acknowledges

that he has had the opportunity to review this Warrant and the exhibits

attached hereto and the transactions contemplated by this Warrant with his own

legal counsel.  The Holder is relying

solely on such counsel and not on any statements or representations of the

Company or its agents for legal advice with respect to this investment or the

transactions contemplated by this Warrant.




 




(l)                                     Tax

Advisors.  The Holder has reviewed

with his own tax advisors the U.S. federal, state, local and foreign tax consequences

of this investment and the transactions contemplated by this Warrant.  With respect to such matters, the Holder

relies solely on such advisors and not on any statements or representations of

the Company or any of its agents, written or oral.  The Holder understands that he (and not the Company) shall be

responsible for his own tax liability that may arise as a result of this

investment or the transactions contemplated by this Warrant.




 




(k)                                  Confidentiality.  The Holder agrees to keep the existence and

terms of this Warrant confidential between himself and the Company as a

condition of the grant hereof, except where disclosure of the existence of

terms of this Warrant may be required by law, provided that the Holder shall

notify the Company in advance of any such anticipated disclosure.  The Holder further acknowledges and agrees

that any breach of this confidentiality commitment by Holder shall entitle the

Company to cancel and refuse to honor any attempted exercise of this Warrant.




 




6.                                       Transfer of Warrants; Restrictions on

Transfer.




 




(a)                                  Warrant

Register.  The Company shall

maintain a register (the “Warrant Register”) containing the name and

address of the Holder or Holders.  Any

Holder of this Warrant or any portion thereof may change its address as shown

on the Warrant Register by written notice to the Company requesting such

change.  Any written notice or written

communication required or permitted to be given to the Holder may be delivered

or given by any method provided in Section 11(d) hereof.  Until this Warrant is transferred on the

Warrant Register, the Company may treat the Holder as shown on the Warrant

Register as the absolute owner of this Warrant for all purposes,

notwithstanding any notice to the contrary.




 




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(b)                                 Warrant

Agent.  The Company may, by notice

to the Holder, appoint an agent for the purpose of maintaining the Warrant

Register referred to in Section 6(a) above, issuing the Shares or other

securities then issuable upon the exercise of the rights under this Warrant,

exchanging this Warrant, replacing this Warrant or any or all of the

foregoing.  Thereafter, any such

registration, issuance, exchange or replacement, as the case may be, shall be

made at the office of such agent.




 




(c)                                  Transferability

and Non-negotiability of Warrant. 

This Warrant may not be transferred or assigned in whole or in part

without compliance with all applicable federal and state securities laws by the

transferor and the transferee.  Subject

to the provisions of this Warrant with respect to compliance with the

Securities Act and limitations on assignments and transfers, including without

limitation compliance with the restrictions on transfer set forth in Section

6(e) hereof, title to this Warrant may be transferred by endorsement (by the

transferor and the transferee executing the assignment form (the “Assignment

Form”) attached hereto as Exhibit

B) and delivery in the same manner as a negotiable instrument

transferable by endorsement and delivery.




 




(d)                                 Exchange

of Warrant upon a Transfer.  On

surrender of this Warrant for exchange and a properly endorsed Assignment Form,

and subject to the provisions of this Warrant with respect to compliance with

the Securities Act and limitations on assignments and transfers, the Company

shall issue to or on the order of the Holder a new warrant or warrants with the

same terms and conditions, in the name of the Holder or such other individual

or entity as the Holder (on payment by the Holder of any applicable transfer

taxes) may direct, for the number of Shares issuable upon exercise of the

rights hereunder and the Company shall register any such transfer upon the

Warrant Register.  This Warrant and the

Shares issuable upon exercise of the rights under this Warrant must be surrendered

to the Company or its warrant or transfer agent, as applicable, as a condition

precedent to the sale, pledge, hypothecation or any other transfer of any

interest in any of the securities represented hereby.  Upon the transfer of this Warrant pursuant to the terms of this

Section 6, the transferee shall be a “Holder” under the terms hereof.




 




(e)                                  Restrictions

on Transfer of Warrants and Shares; Compliance with Securities Laws.




 




(i)                                     The

Holder agrees not to make any disposition of all or any portion of the Shares

or this Warrant unless and until, and it shall be a condition to the transfer

of all or any portion of the Shares or this Warrant that: (1) there is

then in effect a registration statement under the Securities Act covering such

proposed disposition and such disposition is made in accordance with such

registration statement or (2) (A) the Holder shall have notified the Company of

the proposed disposition and shall have furnished the Company with a detailed

statement of the circumstances surrounding the proposed disposition, (B) the

transferee shall have agreed in writing to be bound by and subject to the

terms, conditions, restrictions, obligations and other limitations set forth in

this Warrant to the same extent as if such transferee were the original Holder

hereunder, (C) the transferee shall have confirmed to the satisfaction of the

Company in writing, substantially in the form attached hereto as Exhibit C, that the Shares or the

Warrant purchased are being acquired solely for the transferee’s own account

and not as a nominee for any other party, for investment and not with a view

toward distribution or resale and that the transferee shall have confirmed such

other matters related thereto as may be reasonably requested by the Company,

and (D) if requested by the Company, the Holder shall have furnished the

Company with an opinion of counsel, reasonably satisfactory to the Company,

that such disposition will not require registration of the Warrant or such

Shares under the Securities Act.  This Warrant

or any portion hereof and any Shares issuable pursuant to the exercise of the

rights




 




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under this Warrant that are transferred to a transferee shall be

subject to the terms, conditions, restrictions, obligations and other

limitations set forth herein.




 




(ii)                                  Unless

the rights under this Warrant are exercised pursuant to an effective

registration statement under the Securities Act that includes the Shares with

respect to which the Warrant was exercised, it shall be a condition to any

exercise of the rights under this Warrant that the Holder shall have confirmed

to the satisfaction of the Company in writing, substantially in the form

attached hereto as Exhibit C,

that the Shares so purchased are being acquired solely for the Holder’s own

account and not as a nominee for any other party, for investment and not with a

view toward distribution or resale and that the Holder shall have confirmed

such other matters related thereto as may be reasonably requested by the

Company.




 




(iii)                               This Warrant and all

Shares issued upon exercise hereof shall be stamped or imprinted with a legend

in substantially the following form (in addition to any legend required by

state securities laws):




 




“THESE

SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVE

NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR

SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A

REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT UNLESS

SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE, OFFER, PLEDGE,

HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION.”




 




(f)                                    This

Warrant may not be transferred in part unless such transfer is to a transferee

who, pursuant to such transfer, receives the right to purchase at least five

thousand (5,000) Shares hereunder (as adjusted from time to time in accordance

with Section 9 hereof).




 




7.                                       Reservation

of Stock.  The Company agrees during

the term the rights under this Warrant are exercisable to reserve from its

authorized and unissued Common Stock a sufficient number of shares to provide

for the issuance of the Shares upon the exercise of the rights under this

Warrant and, from time to time, to use its best efforts to amend its

Certificate of Incorporation to provide sufficient reserves of shares of Common

Stock issuable upon exercise of the rights under the Warrant.




 




8.                                       Expiration; Early Termination.  This

Warrant shall expire on March  25, 2008,

and shall be void thereafter. 

Notwithstanding the foregoing, this Warrant shall terminate immediately

prior to the voluntary liquidation, dissolution or winding up of the Company.




 




9.               Adjustment Rights.  The

number and kind of shares purchasable hereunder and the applicable exercise

price(s) therefore are subject to adjustment from time to time, as follows:




 




(a)                                  Merger.  If at any time after the date hereof there

shall be any reorganization, recapitalization, merger or consolidation involving

the Company in which shares of the Company’s stock (other than a

reorganization, recapitalization, merger or consolidation or a related

combination, reclassification, exchange, capital reorganization, subdivision of

securities or other transaction otherwise provided for herein) are converted

into or exchanged for securities, cash or other property, other than as would

cause the expiration of this Warrant, then, as a part of such reorganization,

recapitalization, merger or consolidation, lawful provision shall be made so




 




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that the Holder shall thereafter be entitled to receive upon exercise

of his rights to purchase the Shares hereunder, the kind and amount of

securities, cash or other property of the successor corporation resulting from

such reorganization, recapitalization, merger or consolidation, equivalent in

value to that which a holder of the Common Stock deliverable upon exercise of

such rights to purchase the Shares hereunder would have been entitled in such

reorganization, recapitalization, merger or consolidation if such rights to

purchase the Shares hereunder had been exercised immediately prior to such

reorganization, recapitalization, merger or consolidation.  In any such case, appropriate adjustment (as

determined in good faith by the Company’s Board of Directors) shall be made in

the application of the provisions of this Warrant with respect to the rights

and interests of the Holder after such reorganization, recapitalization, merger

or consolidation to the end that the provisions of this Warrant (including

adjustments of the applicable exercise price(s) and number of shares of Common

Stock purchasable pursuant to the terms and conditions of this Warrant) shall

be applicable after the event, as near as reasonably may be, in relation to any

shares or other securities deliverable after that event upon the exercise of

the Holder’s rights to purchase the Shares pursuant to this Warrant.




 




(b)                                 Reclassification

of Shares.  If the Company at any

time after the date hereof shall, by combination, reclassification, exchange,

capital reorganization or subdivision of securities or otherwise (other than a

combination, reclassification, exchange, capital reorganization or subdivision

of securities or a related reorganization, recapitalization, merger,

consolidation or other transaction otherwise provided for herein), change any

of the securities as to which purchase rights under this Warrant exist into the

same or a different number of securities of any other class or classes, this

Warrant shall thereafter provide for the right or rights to acquire such number

and kind of securities as would have been issuable as the result of such change

with respect to the securities which were subject to the purchase rights under

this Warrant immediately prior to such combination, reclassification, exchange,

capital reorganization, subdivision or other change.  In any such case, appropriate adjustment (as determined in good

faith by the Company’s Board of Directors) shall be made in the application of

the provisions of this Warrant with respect to the rights and interests of the

Holder after such combination, reclassification, capital reorganization,

exchange, subdivision or change to the end that the provisions of this Warrant

(including adjustments of the applicable exercise price(s) and number of shares

of Common Stock purchasable pursuant to the terms and conditions of this

Warrant) shall be applicable after the event, as near as reasonably may be, in

relation to any shares or other securities deliverable after that event upon

the exercise of the Holder’s rights to purchase the Shares pursuant to this

Warrant.




 




(c)                                  Subdivisions

and Combinations.  In the event that

the Company shall at any time subdivide (by stock split, by payment of a stock

dividend or otherwise) the outstanding shares of Common Stock, the number of

Shares issuable upon exercise of the rights under this Warrant immediately

prior to such subdivision shall, concurrently with the effectiveness of such

subdivision, be proportionately increased, and the applicable exercise price(s)

shall be proportionately decreased, and in the event that the Company shall at

any time combine (by reclassification or otherwise) the outstanding shares of

Common Stock into a lesser number of shares of Common Stock, the number of

Shares issuable upon exercise of the rights under this Warrant immediately

prior to such combination shall, concurrently with the effectiveness of such

combination, be proportionately decreased, and the applicable exercise price(s)

shall be proportionately increased.




 




(d)                                 Notice

of Adjustments.  Upon any adjustment

of any of the exercise prices or

any increase or decrease in the number of Shares purchasable upon the exercise

of the rights under this Warrant in accordance with this Section 9, then, and

in each such case, the




 




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Company, within thirty (30) days thereafter, shall promptly give notice

thereof, to the Holder at the address of such Holder as shown on the Warrant

Register of the Company, delivered by any method provided in Section 11(d)

hereof, which notice shall state the event giving rise to the adjustment, the

exercise price(s) as adjusted and, if applicable, the increased or decreased

number of Shares purchasable upon the exercise of the rights under this

Warrant, setting forth in reasonable detail the method of calculation of each.




 




(e)                                  Other

Notices.  In the event that the

Company shall authorize: (1) the issuance of any dividend or other distribution

on the Common Stock (other than: (i) repurchases of Common Stock issued to or

held by employees, officers, directors or consultants of the Company or its

subsidiaries upon termination of their employment or services pursuant to

agreements providing for the right of said repurchase; (ii) repurchases of

Common Stock issued to or held by employees, officers, directors or consultants

of the Company or its subsidiaries pursuant to rights of first refusal

contained in agreements providing for such right; or (iii) repurchases of

capital stock of the Company in connection with the settlement of disputes with

any stockholder), whether in cash, property, stock or other securities; (2) the

voluntary liquidation, dissolution or winding up of the Company; or (3) any transaction

resulting in the expiration of this Warrant; then, in each such case, the

Company shall give written notice thereof to the Holder at the address of such

Holder as shown on the Warrant Register of the Company, delivered by any method

provided in Section 11(d) hereof, at least five (5) days prior to the effective

date of such event.  The notice

provisions set forth in this section may be shortened or waived prospectively

or retrospectively by the vote or written consent of the holders of a majority

of the Shares issuable upon exercise of the rights under this Warrant.




 




10.                                 No

Rights as Stockholder.  Nothing

contained herein shall entitle the Holder to any rights as a stockholder of the

Company or to be deemed the holder of Common Stock or any other securities that

may at any time be issuable on the exercise of the rights hereunder for any

purpose nor shall anything contained herein be construed to confer upon the

Holder, as such, any right to vote for the election of directors or upon any

matter submitted to stockholders at any meeting thereof, or to give or withhold

consent to any corporate action (whether upon any recapitalization, issuance of

stock, reclassification of stock, change of par value or change of stock to no

par value, consolidation, merger, conveyance or otherwise) or to receive notice

of meetings, or to receive dividends or subscription rights or otherwise or any

other rights of a stockholder of the Company until the rights under the Warrant

shall have been exercised and the Shares purchasable upon exercise of the

rights hereunder shall have become deliverable as provided herein.




 




11.                                 Miscellaneous.




 




(a)                                  Effective

Date.  The provisions of this

Warrant shall be construed and shall be given effect in all respects as if it

had been executed and delivered by the Company on the date hereof.




 




(b)                                 Waiver and

Amendment.  Any provision of this Warrant

may be amended, waived or modified only upon the written consent of the Company

and the Holder.




 




(c)                                  Successors and Assigns. 

Except as provided in Section 6, this Warrant, and any and all rights,

duties and obligations hereunder, shall not be assigned, transferred, delegated

or sublicensed by any party hereto without the prior written consent of the

other party.  Any attempt by a party

without such permission to assign, transfer, delegate or sublicense any rights,

duties or obligations that arise under this Warrant shall be void.  Subject to the foregoing




 




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and except as otherwise provided herein, the provisions of this Warrant

shall inure to the benefit of, and be binding upon, the successors and assigns

of the parties.




 




(d)                                 Notices. 

All notices and other communications provided for hereunder shall be in

writing and delivered, mailed or telecopied. 

Notices and other communications to the Holder shall be directed to the

Holder at his address as shown on the Warrant Register maintained by the

Company; and notices and other communications to the Company shall be directed

to the Company at its address as shown on the signature page hereto (any notice

or other communication sent to the Company should be directed to the attention

of the President or Chief Financial Officer of the Company); or, as to each

party, at such other address as shall be designated by such party in a written

notice to the other party pursuant hereto. 

Any such notice or other communication shall be deemed to have been duly

given (i) when sent by Federal Express or other overnight delivery service

of recognized standing, on the business day following deposit with such

service; (ii) when mailed by registered or certified mail, first class

postage prepaid and addressed as aforesaid through the United States Postal

Service, upon receipt; (iii) when delivered by hand, upon delivery; and (iv) when

telecopied, upon confirmation of receipt. 

Any party hereto may by notice so given change its address for future

notice hereunder.




 




(e)                                  Governing Law. 

This Warrant and all actions arising out of or in connection with this

Warrant shall be governed by and construed in accordance with the laws of the

State of Delaware, without regard to the conflicts of law provisions of the

State of Delaware, or of any other state.




 




(f)                                    Further Assurances.  Each party hereto agrees to execute and deliver, by the proper

exercise of its corporate, limited liability company, partnership or other

powers, all such other and additional instruments and documents and do all such

other acts and things as may be reasonably necessary to more fully effectuate

this Warrant.




 




(g)                                 Entire Agreement. 

Except as expressly set forth herein, this Warrant (including the

exhibits attached hereto) constitutes the entire agreement and understanding of

the parties hereto with respect to the subject matter hereof and supersedes all

prior agreements and understandings relating to such subject matter.




 




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(h)                                 WAIVER OF JURY TRIAL.  EACH OF  

THE   PARTIES   HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT

TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON

CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS WARRANT OR THE

ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR

ENFORCEMENT HEREOF.




 




(i)                                     Counterparts.  This Warrant may be executed in one or more

counterparts, all of which shall be considered one and the same agreement and

shall become effective when one or more counterparts have been signed by each

of the parties and delivered to the other party, it being understood that all

parties need not sign the same counterpart.




 




(j)                                     Titles and Subtitles.  The titles and subtitles used in this Warrant are used for

convenience only and are not to be considered in construing or interpreting

this Warrant.  All references in this Warrant

to sections, paragraphs and exhibits shall, unless otherwise provided, refer to

sections and paragraphs hereof and exhibits attached hereto.




 




[Remainder of Page Left

Intentionally Blank]




 




10





























 




IN WITNESS WHEREOF, the Company has caused this

Warrant to be executed as of the date first above written.




 




	

   


  	

  HEALTHETECH,

  INC.


  	

   


  
	

   


  	

   


  
	

   


  	

  By: 


  	

  /s/ Stephen E. Webb


  
	

   


  	

  Stephen E. Webb


  	

   


  
	

   


  	

  Chief Financial Officer


  	

   


  
	

   


  	

   


  
	

   


  	

   


  	

  Address:


  	

  523 Park Point Drive, 3rd Floor


  
	

   


  	

   


  	

  Golden, Colorado  80401


  
						





 




In connection with the execution of this Warrant, the undersigned

Holder acknowledges and agrees to the Representations and Warranties of the

Holder contained in Section 5 hereof:




 




 




	

   


  	

  By: 


  	

  /s/ Gary Foster


  
	

   


  	

   


  	

  Name:   Gary

  Foster


  
	

   


  	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

   


  	

  Address:


  
				





 




(Signature Page to Warrant to Purchase Shares of

Common Stock of HealtheTech, Inc.)




 




11





























 




EXHIBIT A




 




NOTICE OF EXERCISE




 




 




	

  TO:


  	

  HEALTHETECH,

  INC.


  
	

   


  	

   


  
	

  ATTN:


  	

  PRESIDENT


  





 




(1)                                  The

undersigned Holder hereby elects to purchase

         shares of the Common Stock of

HEALTHETECH, INC., pursuant to the terms of the attached Warrant to Purchase

Shares of Common Stock, dated as of March 26, 2003 (the “Warrant”), between

HEALTHETECH, INC. and the Holder, and tenders herewith payment of the purchase

price for such shares in full, together with all applicable transfer taxes, if

any.




 




(2)                                  Please

issue a certificate or certificates representing said shares of Common Stock in

the name of the undersigned or in such other name as is specified below:




 




	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  Name


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  Address


  





 




(3)                                  Please issue a new Warrant for the

unexercised portion of the attached Warrant in the name of the undersigned or

in such other name as is specified below:




 




	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  Name


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  Address


  





 




(4)                                  The

undersigned hereby represents and warrants that the aforesaid shares of Common

Stock are being acquired for investment, solely for the account of the

undersigned and not as a nominee for any other person and not with a view to,

or for resale in connection with, the distribution thereof, and that the

undersigned has no present intention of distributing or reselling such shares

except under circumstances that will not result in a violation of the

Securities Act of 1933, as amended, or any applicable state securities laws,

and all representations and warranties of the undersigned set forth in Section

5 and Section 6(e) of the attached Warrant are true and correct as

of the date hereof.  In support thereof,

the undersigned agrees to execute an Investment Representation Statement in a

form substantially similar to the form attached to the Warrant as Exhibit C.




 




	

   


  	

   


  	

   


  
	

  Date


  	

  Signature


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  Name


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  Title and Name of Entity (if signing on behalf of an

  entity)


  





 




12





























 




EXHIBIT B




 




ASSIGNMENT FORM




 




	

  ASSIGNOR:


  	

   


  	

                                  


  	

   


  
	

  COMPANY:


  	

   


  	

  HEALTHETECH, INC.


  
	

  WARRANT:


  	

   


  	

  THE WARRANT (THE “WARRANT”)

  TO PURCHASE SHARES OF COMMON STOCK ISSUED ON MARCH 26, 2003 (THE “WARRANT”)


  
	

  DATE:


  	

   


  	

                     ,

        


  	

   


  





 




 




FOR VALUE RECEIVED, the undersigned registered Holder

of the Warrant (“Assignor”) hereby

sells, assigns and transfers unto the Assignee named below all of the rights of

the undersigned under the within Warrant, with respect to the number of shares

of Common Stock set forth below:




 




	

  Name of

  Assignee


  	

   


  	

  Address


  	

   


  	

  Number of

  Shares


  	

   


  	

  Exercise

  Period


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  





 




and does irrevocably

constitute and appoint

                      

as attorney to make such transfer on the books of HEALTHETECH, INC., maintained

for the purpose, with full power of substitution in the premises.




 




Each of the

Assignor and Assignee also represent and warrant that, by assignment hereof,

the Assignee acknowledges that the Warrant and the shares of stock to be issued

upon exercise of the rights thereunder are being acquired for investment and

that the Assignee will not offer, sell or otherwise dispose of the Warrant or

any shares of stock to be issued upon exercise of the rights thereunder except

under circumstances which will not result in a violation of the Securities Act

of 1933, as amended, or any state securities laws.  Further, the Assignee has acknowledged that upon exercise of any

rights under the Warrant, the Assignee shall, if requested by the Company,

confirm in writing, in a form satisfactory to the Company, that the shares of

stock so purchased are being acquired for investment and not with a view toward

distribution or resale.  In support

thereof, the undersigned Assignee agrees to execute an Investment Representation

Statement in a form substantially similar to the form attached to the Warrant

as Exhibit C in connection

with this assignment and any exercise of the rights under the Warrant.




 




	

  ASSIGNOR:


  	

  ASSIGNEE:


  
	

   


  	

   


  
	

  By: 


  	

   


  	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Name:


  	

   


  	

   


  	

  Name:


  	

   


  
	

   


  	

  Title:


  	

   


  	

   


  	

  Title:


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

  Address: 


  	

   


  	

   


  	

   


  	

  Address: 


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
								





 




13





























 




EXHIBIT C




 




INVESTMENT REPRESENTATION STATEMENT




 




	

  HOLDER:


  	

   


  	

                                    


  	

   


  
	

  COMPANY:


  	

   


  	

  HEALTHETECH, INC.


  
	

  SECURITIES:


  	

   


  	

  THE WARRANT (THE “WARRANT”)

  TO PURCHASE SHARES OF COMMON STOCK ISSUED ON MARCH 26 2003 AND THE COMMON

  STOCK ISSUED OR ISSUABLE UPON EXERCISE THEREOF


  
	

  AMOUNT:


  	

   


  	

                                    


  	

  SHARES


  
	

  DATE:


  	

   


  	

                     ,

        


  	

   


  





 




In connection with the

purchase of the above-listed Securities, the undersigned Holder represents and

warrants to, and agrees with, the Company as follows:




 




1.                                       Investment Intent. 

The Holder is acquiring the Securities for investment for his own

account, not as a nominee or agent, and not with the view to, or for resale in

connection with, any distribution thereof.




 




2.                                       Investment

Experience.  The Holder has

substantial experience in evaluating and investing in private placement

transactions of securities in companies similar to the Company so that he is

capable of evaluating the merits and risks of his investment in the Company and

has the capacity to protect his own interests.




 




3.                                       Speculative

Nature of Investment.  The Holder

acknowledges that his investment in the Company is highly speculative and entails

a substantial degree of risk and the Holder is in a position to lose the entire

amount of such investment.




 




4.                                       Access

to Data.  The Holder has had an

opportunity to discuss the Company’s business, management and financial affairs

with the Company’s management.  The

Holder has also had an opportunity to ask questions of officers of the Company,

which questions were answered to its satisfaction.  The Holder understands that such discussions, as well as any

information issued by the Company, were intended to describe certain aspects of

the Company’s business and prospects, but were not necessarily a thorough or

exhaustive description.  The Holder

acknowledges that any business plans prepared by the Company have been, and

continue to be, subject to change and that any projections included in such

business plans or otherwise are necessarily speculative in nature, and he can

be expected that some or all of the assumptions underlying the projections will

not materialize or will vary significantly from actual results.




 




5.                                       Accredited

Investor.  The Holder is an

“accredited investor” within the meaning of Regulation D,

Rule 501(a), promulgated by the Securities and Exchange Commission under

the Securities Act of 1933, as amended (the “Securities

Act”).




 




6.                                       Residency.  The residency of the Holder (or, in the case

of a partnership or corporation, such entity’s principal place of business) is

correctly set forth on the signature page hereto.




 




1





























 




7.                                       Restriction

on Resales.  The Holder acknowledges

that the Securities must be held indefinitely unless subsequently registered

under the Securities Act or unless an exemption from such registration is

available.  The Holder further

understands that there is no assurance that any exemption from registration

under the Securities Act will be available or, if available, that such

exemption will allow the Holder to dispose of or otherwise transfer any or all

of the Securities under the circumstances, in the amounts or at the times the

Holder might propose.




 




8.                                       Rule

144.  The Holder is aware of the

provisions of Rule 144 promulgated under the Securities Act which permit

limited resale of shares purchased in a private placement subject to the

satisfaction of certain conditions, including among other things, the existence

of a public market for the shares, the availability of certain current public

information about the Company, the resale occurring not less than one year

after a party has purchased and paid for the security to be sold, the sale

being effected through a “broker’s transaction” or in transactions directly

with a “market maker” and the number of shares being sold during any

three-month period not exceeding specified limitations.  The Holder acknowledges that, in the event

all of the requirements of Rule 144 are not met, registration under the

Securities Act or an exemption from registration will be required for any

disposition of the Securities.  The

Holder understands that, although Rule 144 is not exclusive, the Securities

and Exchange Commission has expressed its opinion that persons proposing to

sell restricted securities received in a private offering other than in a

registered offering or pursuant to Rule 144 will have a substantial burden

of proof in establishing that an exemption from registration is available for

such offers or sales and that such persons and the brokers who participate in

the transactions do so at their own risk.




 




9.                                       Authorization.




 




(a)                                  The

Holder has all requisite power and authority to execute and deliver the

Warrant, to purchase the Securities and to carry out and perform its

obligations under the terms of the Warrant. 

All action on the part of the Holder necessary for the authorization,

execution, delivery and performance of the Warrant, and the performance of all

of the Holder’s obligations under the Warrant, has been taken or will be taken

prior to the purchase of the Warrant.




 




(b)                                 The

Warrant, when executed and delivered by the Holder, will constitute a valid and

legally binding obligation of the Holder, enforceable in accordance with its

terms except: (i) as limited by applicable bankruptcy, insolvency,

reorganization, moratorium and other laws of general application affecting

enforcement of creditors’ rights generally, and (ii) as limited by laws

relating to the availability of specific performance, injunctive relief or

other equitable remedies or by general principles of equity.




 




(c)                                  No

consent, approval, authorization, order, filing, registration or qualification

of or with any court, governmental authority or third person is required to be

obtained by the Holder in connection with the execution and delivery of the

Warrant or the performance of the Holder’s obligations hereunder.




 




10.                                 Brokers

or Finders.  The Holder has not

engaged any brokers, finders or agents, and the Company has not incurred and

will not incur, directly or indirectly, as a result of any action taken by the

Holder, any liability for brokerage or finders’ fees or agents’ commissions or

any similar charges in connection with the Warrant.




 




11.                                 Investor

Counsel.  The Holder acknowledges

that he has had the opportunity to review the Warrant and the exhibits attached

thereto and the transactions contemplated by the Warrant with his own legal

counsel.  The Holder is relying solely

on such counsel and not on any




 




2





























 




statements or representations of the Company or its

agents for legal advice with respect to this investment or the transactions

contemplated by the Warrant.




 




12.                                 Tax

Advisors.  The Holder has reviewed

with his own tax advisors the U.S. federal, state, local and foreign tax

consequences of this investment and the transactions contemplated by the

Warrant.  With respect to such matters,

the Holder relies solely on such advisors and not on any statements or

representations of the Company or any of its agents, written or oral.  The Holder understands that it (and not the

Company) shall be responsible for his own tax liability that may arise as a

result of this investment or the transactions contemplated by the Warrant.




 




13.                                 Further

Limitations on Disposition.  Without

in any way limiting the representations and warranties set forth above, the

Holder agrees not to make any disposition of all or any portion of the

Securities unless and until, and it shall be a condition to the transfer of all

or any portion of the Securities that: (1) there is then in effect a

registration statement under the Securities Act covering such proposed

disposition and such disposition is made in accordance with such registration

statement or (2) (A) the Holder shall have notified the Company of the proposed

disposition and shall have furnished the Company with a detailed statement of

the circumstances surrounding the proposed disposition, (B) the transferee

shall have agreed in writing to be bound by and subject to the terms,

conditions, restrictions, obligations and other limitations set forth in the

Warrant to the same extent as if such transferee were the original Holder

thereunder, (C) the transferee shall have confirmed to the satisfaction of the

Company in writing, substantially in the form attached to the Warrant as Exhibit C, that the Securities are

being acquired solely for the transferee’s own account and not as a nominee for

any other party, for investment and not with a view toward distribution or

resale and that the transferee shall have confirmed such other matters related

thereto as may be reasonably requested by the Company, and (D) if requested by

the Company, the Holder shall have furnished the Company with an opinion of

counsel, reasonably satisfactory to the Company, that such disposition will not

require registration of the Securities under the Securities Act.  The Securities that are transferred to a

transferee shall be subject to the terms, conditions, restrictions, obligations

and other limitations set forth herein and therein.




 




(The remainder of this page is intentionally left

blank.)




 




3





























 




IN WITNESS WHEREOF, the Holder has caused this Investment

Representation Statement to be duly executed and delivered by its proper and

duly authorized officers as of the date and year first written above.




 




	

   


  	

  HOLDER:


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  
	

   


  	

  Name:


  	

   


  
	

   


  	

   


  
	

   


  	

  Title:


  	

   


  
	

   


  	

   


  
	

   


  	

  Address:


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
					





 




(Signature page to the

Investment Representation Statement)




 




4