#### **EXHIBIT 4.15**

 

**WARRANT**

 

**THIS WARRANT HAS BEEN ISSUED AND THESHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT TO THE EXERCISE OF THERIGHTS UNDER THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FORDISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED.  SUCH SECURITIES MAY NOT BESOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THEABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCHACT UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE,OFFER, PLEDGE, HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION.**

 

**WARRANTTO PURCHASE SHARES OF COMMON STOCK**

**OF**

**HEALTHETECH,INC.**

** **

**Datedas 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 purchasefrom HealtheTech, Inc., a Delaware corporation (the “**Company**”), up to fourthousand (4,000) shares of the Company’s Common Stock, $0.001 par value pershare (the “**Shares**”), in the amounts and at the price per share set forthin Section 1 below, subject to the provisions and upon the terms and conditionsset forth herein.  The term “**Warrant**”as used herein shall include this Warrant and any warrants delivered insubstitution or exchange therefore as provided herein.

 

1.                                       Number,Price and Expiration of the Shares. The Holder shall have theright to purchase up to a total of four thousand (4,000) of the Shares (as maybe adjusted pursuant hereto), at an exercise price of $1.80 per share, whichright shall terminate, to the extent not exercised, at 5:00 p.m., MountainTime, on March 25, 2008.

 

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

 

1

----

 

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 exerciseprice(s) multiplied by the number of Shares being purchased by wire transfer orcertified, cashier’s or other check acceptable to the Company and payable tothe order of the Company.

 

(b)                                 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 execute anddeliver a new Warrant with the same terms and conditions for the number ofShares that remain subject to this Warrant.

 

(c)                                  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 applicable exerciseprice(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 andsubstance to the Company or, in the case of mutilation, on surrender andcancellation of this Warrant, the Company at the expense of the Holder shallexecute and deliver, in lieu of this Warrant, a new warrant of like tenor andamount.

 

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, or forresale 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.

 

2

----

 

(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 any informationissued by the Company, were intended to describe certain aspects of theCompany’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 it canbe expected that some or all of the assumptions underlying the projections willnot materialize or will vary significantly from actual results.

 

(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 the satisfactionof certain conditions, including among other things, the existence of a publicmarket for the shares, the availability of certain current public informationabout the Company, the resale occurring not less than one year after a partyhas purchased and paid for the security to be sold, the sale being effectedthrough a “broker’s transaction” or in transactions directly with a “marketmaker” and the number of shares being sold during any three-month period notexceeding specified limitations.  The Holderacknowledges that, in the event all of the requirements of Rule 144 arenot met, registration under the Securities Act or an exemption fromregistration will be required for any disposition of the Securities.  The Holder understands that, although Rule 144is not exclusive, the Securities and Exchange Commission has expressed itsopinion that persons proposing to sell restricted securities received in aprivate offering other than in a registered offering or pursuant toRule 144 will have a substantial burden of proof in establishing that anexemption from registration is available for such offers or sales and that suchpersons and the brokers who participate in the transactions do so at their ownrisk.

 

(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.

 

3

----

 

(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 limited by lawsrelating to the availability of specific performance, injunctive relief orother equitable remedies or by general principles of equity.

 

(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 theCompany or 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 tax consequencesof this investment and the transactions contemplated by this Warrant.  With respect to such matters, the Holderrelies solely on such advisors and not on any statements or representations ofthe Company or any of its agents, written or oral.  The Holder understands that he (and not the Company) shall beresponsible for his own tax liability that may arise as a result of thisinvestment or the transactions contemplated by this Warrant.

 

(k)                                  Confidentiality.  The Holder agrees to keep the existence andterms of this Warrant confidential between himself and the Company as acondition of the grant hereof, except where disclosure of the existence ofterms of this Warrant may be required by law, provided that the Holder shallnotify the Company in advance of any such anticipated disclosure.  The Holder further acknowledges and agreesthat any breach of this confidentiality commitment by Holder shall entitle theCompany to cancel and refuse to honor any attempted exercise of 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.

 

4

----

 

(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 theforegoing.  Thereafter, any suchregistration, issuance, exchange or replacement, as the case may be, shall bemade at the office of such 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 transferee executing the assignment form (the “**AssignmentForm**”) attached hereto as **ExhibitB**) and delivery in the same manner as a negotiable instrumenttransferable by endorsement 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 be surrenderedto the Company or its warrant or transfer agent, as applicable, as a conditionprecedent to the sale, pledge, hypothecation or any other transfer of anyinterest in any of the securities represented hereby.  Upon the transfer of this Warrant pursuant to the terms of thisSection 6, the transferee shall be a “Holder” under the terms 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 suchregistration statement or (2) (A) the Holder shall have notified the Company ofthe proposed disposition and shall have furnished the Company with a detailedstatement of the circumstances surrounding the proposed disposition, (B) thetransferee shall have agreed in writing to be bound by and subject to theterms, conditions, restrictions, obligations and other limitations set forth inthis Warrant 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.  This Warrantor any portion hereof and any Shares issuable pursuant to the exercise of therights

 

5

----

 

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.

 

(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 March  25, 2008,and shall be void thereafter. Notwithstanding the foregoing, this Warrant shall terminate immediatelyprior to the voluntary liquidation, 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 consolidation involvingthe 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 convertedinto or exchanged for securities, cash or other property, other than as wouldcause the expiration of this Warrant, then, as a part of such reorganization,recapitalization, merger or consolidation, lawful provision shall be made so

 

6

----

 

that the Holder shall thereafter be entitled to receive upon exerciseof his rights to purchase the Shares hereunder, the kind and amount ofsecurities, cash or other property of the successor corporation resulting fromsuch reorganization, recapitalization, merger or consolidation, equivalent invalue to that which a holder of the Common Stock deliverable upon exercise ofsuch rights to purchase the Shares hereunder would have been entitled in suchreorganization, recapitalization, merger or consolidation if such rights topurchase the 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 applicable exercise price(s) and number of shares of CommonStock purchasable pursuant to the terms and conditions of this Warrant) shallbe applicable 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

 

7

----

 

Company, within thirty (30) days thereafter, shall promptly give noticethereof, to the Holder at the address of such Holder as shown on the WarrantRegister of the Company, delivered by any method provided in Section 11(d)hereof, which notice shall state the event giving rise to the adjustment, theexercise price(s) as adjusted and, if applicable, the increased or decreasednumber of Shares purchasable upon the exercise of the rights under thisWarrant, setting forth in reasonable detail the method of calculation of each.

 

(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 toagreements providing for the right of said repurchase; (ii) repurchases ofCommon Stock issued to or held by employees, officers, directors or consultantsof the Company or its subsidiaries pursuant to rights of first refusalcontained in agreements providing for such right; or (iii) repurchases ofcapital stock of the Company in connection with the settlement of disputes withany stockholder), whether in cash, property, stock or other securities; (2) thevoluntary liquidation, dissolution or winding up of the Company; or (3) any transactionresulting in the expiration of this Warrant; then, in each such case, theCompany shall give written notice thereof to the Holder at the address of suchHolder as shown on the Warrant Register of the Company, delivered by any methodprovided in Section 11(d) hereof, at least five (5) days prior to the effectivedate of such event.  The noticeprovisions set forth in this section may be shortened or waived prospectivelyor retrospectively by the vote or written consent of the holders of a majorityof the Shares issuable upon exercise of the rights under this 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 and Assigns. Except as provided in Section 6, this Warrant, and any and all rights,duties and obligations hereunder, shall not be assigned, transferred, delegatedor sublicensed by any party hereto without the prior written consent of theother party.  Any attempt by a partywithout 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

 

8

----

 

and except as otherwise provided herein, the provisions of this Warrantshall inure to the benefit of, and be binding upon, the successors and assignsof 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 or other communication shall be deemed to have been dulygiven (i) when sent by Federal Express or other overnight delivery serviceof 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) whentelecopied, upon confirmation of receipt. Any party hereto may by notice so given change its address for futurenotice 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 properexercise of its corporate, limited liability company, partnership or otherpowers, all such other and additional instruments and documents and do all suchother acts and things as may be reasonably necessary to more fully effectuatethis Warrant.

 

(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.

 

9

----

 

(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)                                     Titles and Subtitles.  The titles and subtitles used in this Warrant are used forconvenience only and are not to be considered in construing or interpretingthis Warrant.  All references in this Warrantto sections, paragraphs and exhibits shall, unless otherwise provided, refer tosections and paragraphs hereof and exhibits attached hereto.

 

[Remainder of Page LeftIntentionally Blank]

 

10

----

 

IN WITNESS WHEREOF, the Company has caused thisWarrant 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 undersignedHolder acknowledges and agrees to the Representations and Warranties of theHolder contained in Section 5 hereof:

 

 
|   | By:    | /s/ Gary Foster                |
|--------|--------|--------------------------------|
|   |   | Name:   Gary  Foster |
|   |   | Title:                         |
|   |   |
|   |   | Address:                       |
|        |        |                                |  |

 

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

 

11

----

 

**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 26, 2003 (the “**Warrant**”), betweenHEALTHETECH, INC. and the Holder, and tenders herewith payment of the purchaseprice for such shares in full, together with all applicable transfer taxes, ifany.

 

(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 |

 

(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) |

 

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 Holderof the Warrant (“**Assignor**”) herebysells, assigns and transfers unto the Assignee named below all of the rights ofthe undersigned under the within Warrant, with respect to the number of sharesof Common Stock set 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 theAssignor and Assignee also represent and warrant that, by assignment hereof,the Assignee acknowledges that the Warrant and the shares of stock to be issuedupon exercise of the rights thereunder are being acquired for investment andthat the Assignee will not offer, sell or otherwise dispose of the Warrant orany shares of stock to be issued upon exercise of the rights thereunder exceptunder circumstances which will not result in a violation of the Securities Actof 1933, as amended, or any state securities laws.  Further, the Assignee has acknowledged that upon exercise of anyrights under the Warrant, the Assignee shall, if requested by the Company,confirm in writing, in a form satisfactory to the Company, that the shares ofstock so purchased are being acquired for investment and not with a view towarddistribution or resale.  In supportthereof, the undersigned Assignee agrees to execute an Investment RepresentationStatement in a form substantially similar to the form attached to the Warrantas **Exhibit C** in connectionwith 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 thepurchase of the above-listed Securities, the undersigned Holder represents andwarrants 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 and entailsa substantial degree of risk and the Holder is in a position to lose the entireamount 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.

 

1

----

 

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 suchexemption will allow the Holder to dispose of or otherwise transfer any or allof the Securities under the circumstances, in the amounts or at the times theHolder might 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, the Securitiesand Exchange Commission has expressed its opinion that persons proposing tosell restricted securities received in a private offering other than in aregistered offering or pursuant to Rule 144 will have a substantial burdenof proof in establishing that an exemption from registration is available forsuch offers or sales and that such persons and the brokers who participate inthe transactions do so at their own risk.

 

9.                                       Authorization.

 

(a)                                  TheHolder has all requisite power and authority to execute and deliver theWarrant, to purchase the Securities and to carry out and perform itsobligations 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 allof the Holder’s obligations under the Warrant, has been taken or will be takenprior 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

 

2

----

 

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.*)**

 

3

----

 

IN WITNESS WHEREOF, the Holder has caused this InvestmentRepresentation Statement to be duly executed and delivered by its proper andduly authorized officers as of the date and year first written above.

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

 

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

 

4

----