#### **Exhibit 4.14**

 

**WARRANT**

 

**THISWARRANT HAS BEEN ISSUED AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASEDPURSUANT TO THE EXERCISE OF THE RIGHTS UNDER THIS WARRANT HAVE BEEN ACQUIREDFOR INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER THESECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATEDOR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECTWITH RESPECT THERETO UNDER SUCH ACT UNLESS SOLD PURSUANT TO RULE 144 OFSUCH ACT OR UNLESS SUCH SALE, OFFER, PLEDGE, HYPOTHECATION OR TRANSFER ISOTHERWISE EXEMPT FROM REGISTRATION.**

 

**WARRANTTO PURCHASE SHARES OF COMMON STOCK**

**OF**

**HEALTHETECH,INC.**

** **

 

**Datedas of March 25, 2003**

 
| **No.  CS-10** |   | **Warrant to Purchase**         |
|---------------------|--------|---------------------------------|
|                |   | **85,000 Shares of**            |
|                |   | **Common Stock of the Company** |
|                |   | **(subject to adjustment)**     |

 

THIS CERTIFIES THAT, for value received, AgassiEnterprises, Inc. (the “**Holder**”) is entitled, subject to the termsand conditions set forth below, to purchase from HealtheTech, Inc., a Delawarecorporation (the “**Company**”), up to eighty-five thousand(85,000) 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, subjectto the provisions and upon the terms and conditions set forth herein.  The term “**Warrant**” as used herein shallinclude this Warrant and any warrants delivered in substitution or exchangetherefore as provided herein.

 

1.                                       Number,Price and Expiration of the Shares.

 

(a)                                  The Holder shall have the right topurchase up to a total of twenty-eight thousand three hundred thirty-three(28,333) of the Shares (as may be adjusted pursuant hereto), at an exerciseprice of $7.50 per share, which right shall terminate, to the extent not exercised,at 5:00 p.m., Mountain Time, on March 25, 2005.

 

(b)                                 The Holder shall have the right topurchase up to a total of twenty-eight thousand three hundred thirty-three(28,333) of the Shares (as may be adjusted pursuant hereto), at an exerciseprice of $7.50 per share, which right shall terminate, to the extent notexercised, at 5:00 p.m., Mountain Time, on March 25, 2006.

 

(a)                                  The Holder shall have the right topurchase up to a total of twenty-eight thousand three hundred thirty-four(28,334) of the Shares (as may be adjusted pursuant hereto), at

 

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an exercise price of $7.50 per share, which right shall terminate, tothe extent not exercised, at 5:00 p.m., Mountain Time, on March 25, 2007.

 

2.                                       Exerciseof Warrant.

 

(a)                                  Exercise.  The purchase rights represented by thisWarrant may be exercised at the election of the Holder, in whole or in part, inaccordance 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 oragency of the Company as it may designate by notice in writing to the Holder atthe address of the Holder appearing on the books of the Company) of a notice ofexercise in the form attached hereto as **Exhibit A**(the “**Noticeof Exercise**”), duly completed and executed on behalf of the Holder,together with the surrender of this Warrant, and (ii) the payment to theCompany of an amount equal to the applicable exercise price(s) multiplied bythe number of Shares being purchased by wire transfer or certified, cashier’sor other check acceptable to the Company and payable to the order of theCompany.

 

(b)                                 NetExercise.  Notwithstanding anyprovisions herein to the contrary, if the fair market value of one share of theCompany’s Common Stock is greater than the applicable exercise price (at thedate of calculation as set forth below)(the “**ExercisePrice**”), in lieu of exercising this Warrant by payment of cash, theHolder may elect to receive shares equal to the value (as determined below) ofthis Warrant (or the portion thereof being canceled) by surrender of thisWarrant at the principal office of the Company, together with the properlyendorsed Notice of Exercise, in which event the Company shall issue to theHolder a number of shares of Common Stock computed using the following formula:

 

X = Y (A-B)

A

 

Where            X =                             the number of shares of Common Stock tobe issued to the Holder

 

Y =                              thenumber of shares of Common Stock purchasable under the Warrant or, if only aportion of the Warrant is being exercised, the portion of the Warrant beingcanceled (at the date of such calculation)

 

A =                            thefair market value of one share of the Company’s Common Stock (at the date ofsuch calculation)

 

B =                              ExercisePrice (as adjusted to the date of such calculation)

 

For purposes of the above calculation, the fair marketvalue of one share of Common Stock shall be: (i) if the Company’s Common Stockis listed on any established stock exchange or a national market system,including without limitation the Nasdaq National Market or the Nasdaq SmallCapMarket of The Nasdaq Stock Market, the closing sales price of the Company’sCommon Stock (or the closing bid, if no sales were reported) as quoted by onsuch exchange or system (as reported in The Wall Street Journal or such othersource as the Company shall reasonably deem reliable) on the day the Warrantand Notice of Exercise (complying with the requirements above) are received bythe Company; or (ii) if there shall not at the time of exercise be an establishedmarket for the Company’s Common Stock, the fair market value shall be asdetermined by the Company in good faith.

 

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(c)                                  StockCertificates.  The rights under thisWarrant shall be deemed to have been exercised and the Shares shall be deemedto have been issued immediately prior to the close of business on the date ofits tender for exercise as provided above, and the person entitled to receivethe Shares issuable upon such exercise shall be treated for all purposes as theholder of record of such Shares as of the close of business on such date.  As promptly as reasonably practicable on orafter such date, the Company shall direct the Company’s transfer agent to issueand deliver to the person or persons entitled to receive the same a certificateor certificates for that number of shares issuable upon such exercise.  In the event that the rights under thisWarrant are exercised in part and have not expired, the Company shall executeand deliver a new Warrant with the same terms and conditions for the number ofShares that remain subject to this Warrant.

 

(d)                                 Taxes.  In no event shall the Company be required topay any tax which may be payable in respect of any transfer involved in theissue 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 toissue or deliver any such certificate unless and until the person or personsrequesting the issue thereof shall have paid to the Company the amount of suchtax or shall have established to the satisfaction of the Company that such taxhas been paid.

 

3.                                       NoFractional Shares or Scrip.  Nofractional shares or scrip representing fractional shares shall be issued uponthe exercise of the rights under this Warrant. In lieu of such fractional share to which the Holder would otherwise beentitled, the Company shall make a cash payment equal to the applicableexercise price(s) multiplied by such fraction.

 

4.                                       Replacementof Warrant.  On receipt of evidencereasonably satisfactory to the Company of the loss, theft, destruction ormutilation of this Warrant and, in the case of loss, theft or destruction, ondelivery of an indemnity agreement reasonably satisfactory in form and substanceto the Company or, in the case of mutilation, on surrender and cancellation ofthis Warrant, the Company at the expense of the Holder shall execute anddeliver, in lieu of this Warrant, a new warrant of like tenor and amount.

 

5.                                       Representationsand Warranties of the Holder.

 

(a)                                  InvestmentIntent.  The Holder is acquiring theWarrant and the Shares issuable upon exercise of the Warrant, for investmentfor his own account, not as a nominee or agent, and not with the view to, orfor resale in connection with, any distribution thereof.

 

(b)                                 InvestmentExperience.  The Holder hassubstantial experience in evaluating and investing in private placementtransactions of securities in companies similar to the Company so that he iscapable of evaluating the merits and risks of his investment in the Company andhas the capacity to protect his own interests.

 

(c)                                  SpeculativeNature of Investment.  The Holderacknowledges that his investment in the Company is highly speculative andentails a substantial degree of risk and the Holder is in a position to losethe entire amount of such investment.

 

(d)                                 Accessto Data.  The Holder has had anopportunity to discuss the Company’s business, management and financial affairswith the Company’s management.  TheHolder 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 anyinformation issued by the Company, were intended to describe certain aspects ofthe Company’s business and prospects, but were not necessarily a thorough orexhaustive description.  The

 

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Holder acknowledges that any business plans prepared by the Companyhave been, and continue to be, subject to change and that any projectionsincluded in such business plans or otherwise are necessarily speculative innature, and it can be expected that some or all of the assumptions underlyingthe projections will not materialize or will vary significantly from actualresults.

 

(e)                                  AccreditedInvestor.  The Holder is an“accredited investor” within the meaning of Regulation D,Rule 501(a), promulgated by the Securities and Exchange Commission underthe Securities Act of 1933, as amended (the “**SecuritiesAct**”).

 

(f)                                    Residency.  The residency of the Holder is correctly setforth on the signature page hereto.

 

(g)                                 Restrictionon Resales.  The Holder acknowledgesthat the Warrant and the Shares issuable upon exercise of the Warrant must beheld indefinitely unless subsequently registered under the Securities Act orunless an exemption from such registration is available.  The Holder further understands that there isno assurance that any exemption from registration under the Securities Act willbe available or, if available, that such exemption will allow the Holder todispose of or otherwise transfer this Warrant or any portion hereof and anyShares issuable pursuant to the exercise of the rights under this Warrant underthe circumstances, in the amounts or at the times the Holder might propose.

 

(h)                                 Rule144.  The Holder is aware of theprovisions of Rule 144 promulgated under the Securities Act which permitlimited resale of shares purchased in a private placement subject to thesatisfaction of certain conditions, including among other things, the existenceof a public market for the shares, the availability of certain current publicinformation about the Company, the resale occurring not less than one yearafter a party has purchased and paid for the security to be sold, the salebeing effected through a “broker’s transaction” or in transactions directlywith a “market maker” and the number of shares being sold during anythree-month period not exceeding specified limitations.  The Holder acknowledges that, in the eventall of the requirements of Rule 144 are not met, registration under theSecurities Act or an exemption from registration will be required for anydisposition of the Securities.  TheHolder understands that, although Rule 144 is not exclusive, theSecurities and Exchange Commission has expressed its opinion that personsproposing to sell restricted securities received in a private offering otherthan in a registered offering or pursuant to Rule 144 will have asubstantial burden of proof in establishing that an exemption from registrationis available for such offers or sales and that such persons and the brokers whoparticipate in the transactions do so at their own risk.

 

(i)                                     Authorization.

 

(i)                               TheHolder has all requisite power and authority to execute and deliver thisWarrant, to purchase the Shares issuable upon exercise of the rights under thisWarrant and to carry out and perform his obligations under the terms andconditions of this Warrant.  All actionon the part of the Holder necessary for the authorization, execution, deliveryand performance of this Warrant, and the performance of all of the Holder’sobligations under this Warrant, has been taken or will be taken prior to thepurchase of this Warrant.

 

(ii)                            ThisWarrant, when executed and delivered by the Holder, will constitute a valid andlegally binding obligation of the Holder, enforceable in accordance with itsterms except: (i) as limited by applicable bankruptcy, insolvency,reorganization, moratorium and other laws of general application affectingenforcement of creditors’ rights generally, and (ii) as

 

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limited by laws relating to the availability of specific performance,injunctive relief or other equitable remedies or by general principles ofequity.

 

(iii)                               No consent, approval,authorization, order, filing, registration or qualification of or with anycourt, governmental authority or third person is required to be obtained by theHolder in connection with the execution and delivery of this Warrant or theperformance of the Holder’s obligations hereunder.

 

(j)                                     Brokersand Finders.  The Holder has notengaged any brokers, finders or agents in connection with this Warrant, and theCompany has not incurred and will not incur, directly or indirectly, as aresult of any action taken by the Holder, any liability for brokerage orfinders’ fees or agents’ commissions or any similar charges in connection withthis Warrant.

 

(k)                                  InvestorCounsel.  The Holder acknowledgesthat he has had the opportunity to review this Warrant and the exhibitsattached hereto and the transactions contemplated by this Warrant with his ownlegal counsel.  The Holder is relyingsolely on such counsel and not on any statements or representations of the Companyor its agents for legal advice with respect to this investment or thetransactions contemplated by this Warrant.

 

(l)                                     TaxAdvisors.  The Holder has reviewedwith his own tax advisors the U.S. federal, state, local and foreign taxconsequences of this investment and the transactions contemplated by thisWarrant.  With respect to such matters,the Holder relies solely on such advisors and not on any statements orrepresentations of the Company or any of its agents, written or oral.  The Holder understands that he (and not theCompany) shall be responsible for his own tax liability that may arise as aresult of this investment or the transactions contemplated by this Warrant.

 

6.                                       Transfer of Warrants; Restrictions onTransfer.

 

(a)                                  WarrantRegister.  The Company shallmaintain a register (the “**Warrant Register**”) containing the name andaddress of the Holder or Holders.  AnyHolder of this Warrant or any portion thereof may change its address as shownon the Warrant Register by written notice to the Company requesting suchchange.  Any written notice or writtencommunication required or permitted to be given to the Holder may be deliveredor given by any method provided in Section 11(d) hereof.  Until this Warrant is transferred on theWarrant Register, the Company may treat the Holder as shown on the WarrantRegister as the absolute owner of this Warrant for all purposes,notwithstanding any notice to the contrary.

 

(b)                                 WarrantAgent.  The Company may, by noticeto the Holder, appoint an agent for the purpose of maintaining the WarrantRegister referred to in Section 6(a) above, issuing the Shares or othersecurities 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 ofsuch agent.

 

(c)                                  Transferabilityand Non-negotiability of Warrant. This Warrant may not be transferred or assigned in whole or in partwithout compliance with all applicable federal and state securities laws by thetransferor and the transferee.  Subjectto the provisions of this Warrant with respect to compliance with theSecurities Act and limitations on assignments and transfers, including withoutlimitation compliance with the restrictions on transfer set forth in Section6(e) hereof, title to this Warrant may be transferred by endorsement (by thetransferor and the

 

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transferee executing the assignment form (the “**Assignment Form**”) attachedhereto as **Exhibit B**) anddelivery in the same manner as a negotiable instrument transferable byendorsement and delivery.

 

(d)                                 Exchangeof Warrant upon a Transfer.  Onsurrender of this Warrant for exchange and a properly endorsed Assignment Form,and subject to the provisions of this Warrant with respect to compliance withthe Securities Act and limitations on assignments and transfers, the Companyshall issue to or on the order of the Holder a new warrant or warrants with thesame terms and conditions, in the name of the Holder or such other individualor entity as the Holder (on payment by the Holder of any applicable transfertaxes) may direct, for the number of Shares issuable upon exercise of therights hereunder and the Company shall register any such transfer upon theWarrant Register.  This Warrant and theShares issuable upon exercise of the rights under this Warrant must besurrendered to the Company or its warrant or transfer agent, as applicable, asa condition precedent to the sale, pledge, hypothecation or any other transferof any interest in any of the securities represented hereby.  Upon the transfer of this Warrant pursuantto the terms of this Section 6, the transferee shall be a “Holder” under theterms hereof.

 

(e)                                  Restrictionson Transfer of Warrants and Shares; Compliance with Securities Laws.

 

(i)                                     TheHolder agrees not to make any disposition of all or any portion of the Sharesor this Warrant unless and until, and it shall be a condition to the transferof all or any portion of the Shares or this Warrant that: (1) there isthen in effect a registration statement under the Securities Act covering suchproposed disposition and such disposition is made in accordance with such registrationstatement or (2) (A) the Holder shall have notified the Company of the proposeddisposition and shall have furnished the Company with a detailed statement ofthe circumstances surrounding the proposed disposition, (B) the transfereeshall have agreed in writing to be bound by and subject to the terms,conditions, restrictions, obligations and other limitations set forth in thisWarrant to the same extent as if such transferee were the original Holderhereunder, (C) the transferee shall have confirmed to the satisfaction of theCompany in writing, substantially in the form attached hereto as **Exhibit C**, that the Shares or theWarrant purchased are being acquired solely for the transferee’s own accountand not as a nominee for any other party, for investment and not with a viewtoward distribution or resale and that the transferee shall have confirmed suchother matters related thereto as may be reasonably requested by the Company,and (D) if requested by the Company, the Holder shall have furnished theCompany with an opinion of counsel, reasonably satisfactory to the Company,that such disposition will not require registration of the Warrant or suchShares under the Securities Act.  ThisWarrant or any portion hereof and any Shares issuable pursuant to the exerciseof the rights under this Warrant that are transferred to a transferee shall besubject to the terms, conditions, restrictions, obligations and otherlimitations set forth herein.

 

(ii)                                        Unlessthe rights under this Warrant are exercised pursuant to an effectiveregistration statement under the Securities Act that includes the Shares withrespect to which the Warrant was exercised, it shall be a condition to anyexercise of the rights under this Warrant that the Holder shall have confirmedto the satisfaction of the Company in writing, substantially in the formattached hereto as **Exhibit C**,that the Shares so purchased are being acquired solely for the Holder’s ownaccount and not as a nominee for any other party, for investment and not with aview toward distribution or resale and that the Holder shall have confirmedsuch other matters related thereto as may be reasonably requested by theCompany.

 

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(iii)                               This Warrant and allShares issued upon exercise hereof shall be stamped or imprinted with a legendin substantially the following form (in addition to any legend required bystate securities laws):

 

“THESESECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVENOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  SUCH SECURITIES MAY NOT BE SOLD, OFFERED FORSALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AREGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT UNLESSSOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE, OFFER, PLEDGE,HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION.”

 

(f)                                    ThisWarrant may not be transferred in part unless such transfer is to a transfereewho, pursuant to such transfer, receives the right to purchase at least fivethousand (5,000) Shares hereunder (as adjusted from time to time in accordancewith Section 9 hereof).

 

7.                                       Reservationof Stock.  The Company agrees duringthe term the rights under this Warrant are exercisable to reserve from itsauthorized and unissued Common Stock a sufficient number of shares to providefor the issuance of the Shares upon the exercise of the rights under thisWarrant and, from time to time, to use its best efforts to amend itsCertificate of Incorporation to provide sufficient reserves of shares of CommonStock issuable upon exercise of the rights under the Warrant.

 

8.                                       Expiration; Early Termination.  ThisWarrant shall expire on the dates provided in Section 1 hereof and shall bevoid thereafter.  Notwithstanding theforegoing, this Warrant shall terminate immediately prior to the voluntaryliquidation, dissolution or winding up of the Company.

 

9.                                       Adjustment Rights.  Thenumber and kind of shares purchasable hereunder and the applicable exerciseprice(s) therefore are subject to adjustment from time to time, as follows:

 

(a)                                  Merger.  If at any time after the date hereof thereshall be any reorganization, recapitalization, merger or consolidationinvolving the Company in which shares of the Company’s stock (other than areorganization, recapitalization, merger or consolidation or a relatedcombination, reclassification, exchange, capital reorganization, subdivision ofsecurities or other transaction otherwise provided for herein) are converted intoor exchanged for securities, cash or other property, other than as would causethe expiration of this Warrant, then, as a part of such reorganization,recapitalization, merger or consolidation, lawful provision shall be made sothat the Holder shall thereafter be entitled to receive upon exercise of hisrights to purchase the Shares hereunder, the kind and amount of securities,cash or other property of the successor corporation resulting from suchreorganization, recapitalization, merger or consolidation, equivalent in valueto that which a holder of the Common Stock deliverable upon exercise of suchrights to purchase the Shares hereunder would have been entitled in suchreorganization, recapitalization, merger or consolidation if such rights to purchasethe Shares hereunder had been exercised immediately prior to suchreorganization, recapitalization, merger or consolidation.  In any such case, appropriate adjustment (asdetermined in good faith by the Company’s Board of Directors) shall be made inthe application of the provisions of this Warrant with respect to the rightsand interests of the Holder after such reorganization, recapitalization, mergeror consolidation to the end that the provisions of this Warrant (includingadjustments of the

 

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applicable exercise price(s) and number of shares of Common Stockpurchasable pursuant to the terms and conditions of this Warrant) shall beapplicable after the event, as near as reasonably may be, in relation to anyshares or other securities deliverable after that event upon the exercise ofthe Holder’s rights to purchase the Shares pursuant to this Warrant.

 

(b)                                 Reclassificationof Shares.  If the Company at anytime after the date hereof shall, by combination, reclassification, exchange,capital reorganization or subdivision of securities or otherwise (other than acombination, reclassification, exchange, capital reorganization or subdivisionof securities or a related reorganization, recapitalization, merger,consolidation or other transaction otherwise provided for herein), change anyof the securities as to which purchase rights under this Warrant exist into thesame or a different number of securities of any other class or classes, thisWarrant shall thereafter provide for the right or rights to acquire such numberand kind of securities as would have been issuable as the result of such changewith respect to the securities which were subject to the purchase rights underthis Warrant immediately prior to such combination, reclassification, exchange,capital reorganization, subdivision or other change.  In any such case, appropriate adjustment (as determined in goodfaith by the Company’s Board of Directors) shall be made in the application ofthe provisions of this Warrant with respect to the rights and interests of theHolder 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 sharesof Common Stock purchasable pursuant to the terms and conditions of thisWarrant) shall be applicable after the event, as near as reasonably may be, inrelation to any shares or other securities deliverable after that event uponthe exercise of the Holder’s rights to purchase the Shares pursuant to thisWarrant.

 

(c)                                  Subdivisionsand Combinations.  In the event thatthe Company shall at any time subdivide (by stock split, by payment of a stockdividend or otherwise) the outstanding shares of Common Stock, the number ofShares issuable upon exercise of the rights under this Warrant immediatelyprior to such subdivision shall, concurrently with the effectiveness of suchsubdivision, be proportionately increased, and the applicable exercise price(s)shall be proportionately decreased, and in the event that the Company shall atany time combine (by reclassification or otherwise) the outstanding shares ofCommon Stock into a lesser number of shares of Common Stock, the number ofShares issuable upon exercise of the rights under this Warrant immediatelyprior to such combination shall, concurrently with the effectiveness of suchcombination, be proportionately decreased, and the applicable exercise price(s)shall be proportionately increased.

 

(d)                                 Noticeof Adjustments.  Upon any adjustmentof any of the exercise prices orany increase or decrease in the number of Shares purchasable upon the exerciseof the rights under this Warrant in accordance with this Section 9, then, andin each such case, the Company, within thirty (30) days thereafter, shallpromptly give notice thereof, to the Holder at the address of such Holder asshown on the Warrant Register of the Company, delivered by any method providedin Section 11(d) hereof, which notice shall state the event giving rise to theadjustment, the exercise price(s) as adjusted and, if applicable, the increasedor decreased number of Shares purchasable upon the exercise of the rights underthis Warrant, setting forth in reasonable detail the method of calculation ofeach.

 

(e)                                  OtherNotices.  In the event that theCompany shall authorize: (1) the issuance of any dividend or other distributionon the Common Stock (other than: (i) repurchases of Common Stock issued to orheld by employees, officers, directors or consultants of the Company or itssubsidiaries upon termination of their employment or services pursuant to

 

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agreements providing for the right of said repurchase; (ii) repurchasesof Common Stock issued to or held by employees, officers, directors orconsultants of the Company or its subsidiaries pursuant to rights of firstrefusal contained in agreements providing for such right; or (iii) repurchasesof capital stock of the Company in connection with the settlement of disputeswith 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 suchcase, the Company shall give written notice thereof to the Holder at theaddress 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) daysprior to the effective date of such event. The notice provisions set forth in this section may be shortened orwaived prospectively or retrospectively by the vote or written consent of theholders of a majority of the Shares issuable upon exercise of the rights underthis Warrant.

 

10.                                 NoRights as Stockholder.  Nothingcontained herein shall entitle the Holder to any rights as a stockholder of theCompany or to be deemed the holder of Common Stock or any other securities thatmay at any time be issuable on the exercise of the rights hereunder for anypurpose nor shall anything contained herein be construed to confer upon theHolder, as such, any right to vote for the election of directors or upon anymatter submitted to stockholders at any meeting thereof, or to give or withholdconsent to any corporate action (whether upon any recapitalization, issuance ofstock, reclassification of stock, change of par value or change of stock to nopar value, consolidation, merger, conveyance or otherwise) or to receive noticeof meetings, or to receive dividends or subscription rights or otherwise or anyother rights of a stockholder of the Company until the rights under the Warrantshall have been exercised and the Shares purchasable upon exercise of therights hereunder shall have become deliverable as provided herein.

 

11.                                 Miscellaneous.

 

(a)                                  EffectiveDate.  The provisions of thisWarrant shall be construed and shall be given effect in all respects as if ithad been executed and delivered by the Company on the date hereof.

 

(b)                                 Waiver andAmendment.  Any provision of this Warrantmay be amended, waived or modified only upon the written consent of the Companyand the Holder.

 

(c)                                  Successors andAssigns.  Except as provided in Section 6, thisWarrant, and any and all rights, duties and obligations hereunder, shall not beassigned, transferred, delegated or sublicensed by any party hereto without theprior 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 thisWarrant shall be void.  Subject to theforegoing and except as otherwise provided herein, the provisions of thisWarrant shall inure to the benefit of, and be binding upon, the successors andassigns of the parties.

 

(d)                                 Notices. All notices and other communications provided for hereunder shall be inwriting and delivered, mailed or telecopied. Notices and other communications to the Holder shall be directed to theHolder at his address as shown on the Warrant Register maintained by theCompany; and notices and other communications to the Company shall be directedto the Company at its address as shown on the signature page hereto (any noticeor other communication sent to the Company should be directed to the attentionof the President or Chief Financial Officer of the Company); or, as to eachparty, at such other address as shall be designated by such party in a writtennotice to the other party pursuant hereto. Any such notice

 

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or other communication shall be deemed to have beenduly given (i) when sent by Federal Express or other overnight deliveryservice of recognized standing, on the business day following deposit with suchservice; (ii) when mailed by registered or certified mail, first classpostage prepaid and addressed as aforesaid through the United States PostalService, upon receipt; (iii) when delivered by hand, upon delivery; and(iv) when telecopied, upon confirmation of receipt.  Any party hereto may by notice so givenchange its address for future notice hereunder.

 

(e)                                  Governing Law. This Warrant and all actions arising out of or in connection with thisWarrant shall be governed by and construed in accordance with the laws of theState of Delaware, without regard to the conflicts of law provisions of theState of Delaware, or of any other state.

 

(f)                                    Further Assurances. Each party hereto agrees to execute and deliver, by the proper exerciseof its corporate, limited liability company, partnership or other powers, allsuch other and additional instruments and documents and do all such other actsand things as may be reasonably necessary to more fully effectuate thisWarrant.

 

(g)                                 Entire Agreement. Except as expressly set forth herein, this Warrant (including theexhibits attached hereto) constitutes the entire agreement and understanding ofthe parties hereto with respect to the subject matter hereof and supersedes allprior agreements and understandings relating to such subject matter.

 

(h)                                 WAIVER OF JURY TRIAL.  EACH OF  THE   PARTIES   HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTTO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ONCONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS WARRANT OR THEACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE ORENFORCEMENT HEREOF.

 

(i)                                     Counterparts.  This Warrant may be executed in one or morecounterparts, all of which shall be considered one and the same agreement andshall become effective when one or more counterparts have been signed by eachof the parties and delivered to the other party, it being understood that allparties need not sign the same counterpart.

 

(j)                                     Titlesand Subtitles.  The titles and subtitles used in this Warrantare used for convenience only and are not to be considered in construing orinterpreting this Warrant.  Allreferences in this Warrant to sections, paragraphs and exhibits shall, unlessotherwise provided, refer to sections and paragraphs hereof and exhibitsattached hereto.

 

[Remainder of Page LeftIntentionally Blank]

 

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IN WITNESS WHEREOF, the Company has caused thisWarrant to be executed as of the date first above written.

 
|   | **HEALTHETECH,  INC.**                |                         |
|--------|---------------------------------------|------------------------------|
|   |                                  |
|   | By:                                   | /s/ James R. Mault           |
|   | James R. Mault, M.D.                  |
|   | Chairman and Chief  Executive Officer |
|   |                                  |
|   |                                  | Address:                     | 523 Park Point Drive, 3rd Floor |
|   |                                  | Golden, Colorado  80401 |
|        |                                       |                              |  |  |

 

 

In connection with the execution of this Warrant, the undersignedHolder acknowledges and agrees to the Representations and Warranties of theHolder contained in Section 5 hereof:

 

 
|   | By:    | /s/ Perry Rogers                          |
|--------|--------|-------------------------------------------|
|   |   | Name:   Perry  Rogers           |
|   |   | Title:      President |
|   |   |
|   |   | Address:                                  |

 

 

**(*Signature Page to Warrant to Purchase Shares ofCommon Stock of HealtheTech, Inc.*)**

 

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**EXHIBIT A**

 

**NOTICE OF EXERCISE**

 

 
| **TO:**   | **HEALTHETECH,  INC.** |
|-----------|------------------------|
|      |                   |
| **ATTN:** | **PRESIDENT**          |

 

(1)                                  Theundersigned Holder hereby elects to purchase         shares of the Common Stock ofHEALTHETECH, INC., pursuant to the terms of the attached Warrant to PurchaseShares of Common Stock, dated as of March 25, 2003 (the “**Warrant**”), betweenHEALTHETECH, INC. and the Holder, and:

 

tenders herewithpayment of the purchase price for such shares in full, together with allapplicable transfer taxes, if any.

 

elects to purchasepursuant to the net exercise provisions set forth in Section 2(b) of theWarrant and tenders herewith payment of all applicable transfer taxes, if any.

 

(2)                                  Pleaseissue a certificate or certificates representing said shares of Common Stock inthe name of the undersigned or in such other name as is specified below:

 
|   |   |   |   |    |
|--------|--------|--------|--------|---------|
|   |   |   |   | Name    |
|   |   |   |   |    |
|   |   |   |   |    |
|   |   |   |   | Address |

 

(3)                                  Please issue a new Warrant for theunexercised portion of the attached Warrant in the name of the undersigned orin such other name as is specified below:

 
|   |   |   |   |    |
|--------|--------|--------|--------|---------|
|   |   |   |   | Name    |
|   |   |   |   |    |
|   |   |   |   |    |
|   |   |   |   | Address |

 

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(4)                                  Theundersigned hereby represents and warrants that the aforesaid shares of CommonStock are being acquired for investment, solely for the account of theundersigned 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 theundersigned has no present intention of distributing or reselling such sharesexcept under circumstances that will not result in a violation of theSecurities Act of 1933, as amended, or any applicable state securities laws,and all representations and warranties of the undersigned set forth in Section5 and Section 6(e) of the attached Warrant are true and correct asof the date hereof.  In support thereof,the undersigned agrees to execute an Investment Representation Statement in aform 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) |

 

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**EXHIBIT B**

 

**ASSIGNMENT FORM**

 

 
| ASSIGNOR: |   |                                     |   |
|-----------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
| COMPANY:  |   | HEALTHETECH, INC.                                                                                                                                                                                                  |
| WARRANT:  |   | THE WARRANT (THE “**WARRANT**”)  TO PURCHASE SHARES OF COMMON STOCK ISSUED ON MARCH 25, 2003 (THE “**WARRANT**”)                                                                               |
| DATE:     |   |                    ,                                                                  |   |

 

FOR VALUE RECEIVED, the undersigned registered Holder of the Warrant (“**Assignor**”) hereby sells, assigns andtransfers unto the Assignee named below all of the rights of the undersignedunder the within Warrant, with respect to the number of shares of Common Stockset forth below:

 
| **Name of  Assignee** |   | **Address** |       | **Number of  Shares** |       | **Exercise  Period** |       |
|-----------------------|--------|-------------|------------|-----------------------|------------|----------------------|------------|
|                  |   |        | ** ** |                  | ** ** |                 | ** ** |
|                  |   |        |       |                  |       |                 |       |
|                  |   |        |       |                  |       |                 |       |

 

and does irrevocablyconstitute and appoint                      as attorney to make such transfer on the books of HEALTHETECH, INC., maintainedfor the purpose, with full power of substitution in the premises.

 

Each of the Assignor and Assignee also represent andwarrant that, by assignment hereof, the Assignee acknowledges that the Warrantand the shares of stock to be issued upon exercise of the rights thereunder arebeing acquired for investment and that the Assignee will not offer, sell orotherwise dispose of the Warrant or any shares of stock to be issued uponexercise of the rights thereunder except under circumstances which will notresult in a violation of the Securities Act of 1933, as amended, or any statesecurities laws.  Further, the Assigneehas acknowledged that upon exercise of any rights under the Warrant, theAssignee shall, if requested by the Company, confirm in writing, in a formsatisfactory to the Company, that the shares of stock so purchased are beingacquired for investment and not with a view toward distribution or resale.  In support thereof, the undersigned Assigneeagrees to execute an Investment Representation Statement in a formsubstantially similar to the form attached to the Warrant as **Exhibit C** in connection with thisassignment and any exercise of the rights under the Warrant.

 
| **ASSIGNOR:** | **ASSIGNEE:** |
|---------------|---------------|
|          |          |
| By:           |          |   | By: |   |   |
|          | Name:         |   |   | Name: |   |
|          | Title:        |   |   | Title: |   |
|          |          |   |   |   |   |
|          | Address:      |   |   |   | Address: |   |   |
|          |          |   |   |   |   |
|               |               |  |  |  |  |  |  |

 

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**EXHIBIT C**

 

**INVESTMENT REPRESENTATION STATEMENT**

 

 
| HOLDER:     |   |                                      |   |
|-------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
| COMPANY:    |   | HEALTHETECH, INC.                                                                                                                                                                                                        |
| SECURITIES: |   | THE WARRANT (THE “**WARRANT**”)  TO PURCHASE SHARES OF COMMON STOCK ISSUED ON MARCH 25, 2003 AND THE COMMON  STOCK ISSUED OR ISSUABLE UPON EXERCISE THEREOF                                                    |
| AMOUNT:     |   |                                                                                                                                                                                                                     | SHARES |
| DATE:       |   |                    ,                                                                        |   |

 

In connection with the purchase of the above-listedSecurities, 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 ownaccount, not as a nominee or agent, and not with the view to, or for resale inconnection with, any distribution thereof.

 

2.                                       InvestmentExperience.  The Holder hassubstantial experience in evaluating and investing in private placementtransactions of securities in companies similar to the Company so that he iscapable of evaluating the merits and risks of his investment in the Company andhas the capacity to protect his own interests.

 

3.                                       SpeculativeNature of Investment.  The Holderacknowledges that his investment in the Company is highly speculative andentails a substantial degree of risk and the Holder is in a position to losethe entire amount of such investment.

 

4.                                       Accessto Data.  The Holder has had anopportunity to discuss the Company’s business, management and financial affairswith the Company’s management.  TheHolder 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 anyinformation issued by the Company, were intended to describe certain aspects ofthe Company’s business and prospects, but were not necessarily a thorough orexhaustive description.  The Holderacknowledges that any business plans prepared by the Company have been, andcontinue to be, subject to change and that any projections included in suchbusiness plans or otherwise are necessarily speculative in nature, and he canbe expected that some or all of the assumptions underlying the projections willnot materialize or will vary significantly from actual results.

 

5.                                       AccreditedInvestor.  The Holder is an“accredited investor” within the meaning of Regulation D,Rule 501(a), promulgated by the Securities and Exchange Commission underthe Securities Act of 1933, as amended (the “**SecuritiesAct**”).

 

6.                                       Residency.  The residency of the Holder (or, in the caseof a partnership or corporation, such entity’s principal place of business) iscorrectly set forth on the signature page hereto.

 

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7.                                       Restrictionon Resales.  The Holder acknowledgesthat the Securities must be held indefinitely unless subsequently registeredunder the Securities Act or unless an exemption from such registration isavailable.  The Holder furtherunderstands that there is no assurance that any exemption from registrationunder the Securities Act will be available or, if available, that such exemptionwill allow the Holder to dispose of or otherwise transfer any or all of theSecurities under the circumstances, in the amounts or at the times the Holdermight propose.

 

8.                                       Rule144.  The Holder is aware of theprovisions of Rule 144 promulgated under the Securities Act which permitlimited resale of shares purchased in a private placement subject to thesatisfaction of certain conditions, including among other things, the existenceof a public market for the shares, the availability of certain current publicinformation about the Company, the resale occurring not less than one yearafter a party has purchased and paid for the security to be sold, the salebeing effected through a “broker’s transaction” or in transactions directlywith a “market maker” and the number of shares being sold during anythree-month period not exceeding specified limitations.  The Holder acknowledges that, in the eventall of the requirements of Rule 144 are not met, registration under theSecurities Act or an exemption from registration will be required for anydisposition of the Securities.  TheHolder understands that, although Rule 144 is not exclusive, theSecurities and Exchange Commission has expressed its opinion that personsproposing to sell restricted securities received in a private offering otherthan in a registered offering or pursuant to Rule 144 will have asubstantial burden of proof in establishing that an exemption from registrationis available for such offers or sales and that such persons and the brokers whoparticipate in the transactions do so at their own risk.

 

9.                                       Authorization.  The Holder has all requisite power andauthority to execute and deliver the Warrant, to purchase the Securities and tocarry out and perform its obligations under the terms of the Warrant.  All action on the part of the Holdernecessary for the authorization, execution, delivery and performance of theWarrant, and the performance of all of the Holder’s obligations under theWarrant, has been taken or will be taken prior to the purchase of the Warrant.

 

(b)                                 TheWarrant, when executed and delivered by the Holder, will constitute a valid andlegally binding obligation of the Holder, enforceable in accordance with itsterms except: (i) as limited by applicable bankruptcy, insolvency,reorganization, moratorium and other laws of general application affectingenforcement of creditors’ rights generally, and (ii) as limited by lawsrelating to the availability of specific performance, injunctive relief orother equitable remedies or by general principles of equity.

 

(c)                                  Noconsent, approval, authorization, order, filing, registration or qualificationof or with any court, governmental authority or third person is required to beobtained by the Holder in connection with the execution and delivery of theWarrant or the performance of the Holder’s obligations hereunder.

 

10.                                 Brokersor Finders.  The Holder has notengaged any brokers, finders or agents, and the Company has not incurred andwill not incur, directly or indirectly, as a result of any action taken by theHolder, any liability for brokerage or finders’ fees or agents’ commissions orany similar charges in connection with the Warrant.

 

11.                                 InvestorCounsel.  The Holder acknowledgesthat he has had the opportunity to review the Warrant and the exhibits attachedthereto and the transactions contemplated by the Warrant with his own legalcounsel.  The Holder is relying solelyon such counsel and not on any

 

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statements or representations of the Company or itsagents for legal advice with respect to this investment or the transactionscontemplated by the Warrant.

 

12.                                 TaxAdvisors.  The Holder has reviewedwith his own tax advisors the U.S. federal, state, local and foreign taxconsequences of this investment and the transactions contemplated by theWarrant.  With respect to such matters,the Holder relies solely on such advisors and not on any statements orrepresentations of the Company or any of its agents, written or oral.  The Holder understands that it (and not theCompany) shall be responsible for his own tax liability that may arise as aresult of this investment or the transactions contemplated by the Warrant.

 

13.                                 FurtherLimitations on Disposition.  Withoutin any way limiting the representations and warranties set forth above, theHolder agrees not to make any disposition of all or any portion of theSecurities unless and until, and it shall be a condition to the transfer of allor any portion of the Securities that: (1) there is then in effect aregistration statement under the Securities Act covering such proposeddisposition and such disposition is made in accordance with such registrationstatement or (2) (A) the Holder shall have notified the Company of the proposeddisposition and shall have furnished the Company with a detailed statement ofthe circumstances surrounding the proposed disposition, (B) the transfereeshall have agreed in writing to be bound by and subject to the terms,conditions, restrictions, obligations and other limitations set forth in theWarrant to the same extent as if such transferee were the original Holderthereunder, (C) the transferee shall have confirmed to the satisfaction of theCompany in writing, substantially in the form attached to the Warrant as **Exhibit C**, that the Securities arebeing acquired solely for the transferee’s own account and not as a nominee forany other party, for investment and not with a view toward distribution orresale and that the transferee shall have confirmed such other matters relatedthereto as may be reasonably requested by the Company, and (D) if requested bythe Company, the Holder shall have furnished the Company with an opinion ofcounsel, reasonably satisfactory to the Company, that such disposition will notrequire registration of the Securities under the Securities Act.  The Securities that are transferred to atransferee shall be subject to the terms, conditions, restrictions, obligationsand other limitations set forth herein and therein.

 

**(*The remainder of this page is intentionally leftblank.*)**

 

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IN WITNESS WHEREOF, the Holder has caused thisInvestment Representation Statement to be duly executed and delivered by itsproper and duly authorized officers as of the date and year first writtenabove.

 
|   | **HOLDER:** |
|--------|-------------|
|   |        |
|   | By:         |   |
|   |        |
|   | Name:       |   |
|   |        |
|   | Title:      |   |
|   |        |
|   | Address:    |
|   |        |
|   |        |
|   |        |
|   |        |
|   |        |
|   |        |
|        |             |  |  |  |

 

**(*Signature page to theInvestment Representation Statement*)**

 

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