Exhibit 10.3
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN SECTIONS 5.4 AND 5.5 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
WARRANT TO PURCHASE STOCK
Company: The Beachbody Company, Inc., a Delaware corporation
Number of Shares: [●], subject to adjustment as provided herein
Class: Class A Common Stock, $0.0001 par value per share
Warrant Price: $[●] per Share, subject to adjustment as provided herein
Issue Date: [●], 2022
Expiration Date: [●], 2029 See also Section 5.1(c).
THIS WARRANT TO PURCHASE STOCK (“WARRANT”) CERTIFIES THAT, for good and valuable consideration, [●] (together with any successor or permitted assignee or transferee of this Warrant or of any shares issued upon exercise hereof, “Holder”) is entitled to purchase up to the number set forth above, of fully paid and non-assessable shares (subject to adjustment as provided herein, the “Shares”) of Class A Common Stock (“Class A Common Stock”) of The Beachbody Company, Inc., a Delaware corporation (the “Company”) at a purchase price per share of $[●] (“Warrant Price”), all as set forth above and as adjusted pursuant to Section 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in this Warrant.
substantially the form attached hereto as Appendix 1 via delivery in accordance with Section 5.9 and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 1.2, a check, wire transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for the aggregate Warrant Price for the Shares being purchased.
X = Y(A-B)/A
where:
X = the number of Vested Shares to be issued to the Holder;
Y = the number of Vested Shares with respect to which this Warrant is being exercised (inclusive of the Vested Shares surrendered to the Company in payment of the aggregate Warrant Price);
A = the Fair Market Value (as determined pursuant to Section 1.3 below) of one Share; and
B = the Warrant Price.
X=A-B×CA
where:
X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b).
A = the amount of Sale Consideration payable per share of Class A Common Stock of the Acquisition, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Acquisition.
B = the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price.
C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price).
In connection with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with the Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition.
then, in connection with each such event, the Company shall give Holder:
The Holder represents and warrants to the Company as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE ISSUER TO [●] DATED [●], 2022, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
[●]
150 East 58th Street, 18th Floor
New York, NY 10155
Attention: Sibyl Kavak
Email: skavak@bluetorchcapital.com
with a copy to:
Milbank LLP
2029 Century Park East, Suite 3300
Los Angeles, CA 90067
Attention: Jason Anderson; Al Pisa
Email: jtanderson@milbank.com; apisa@milbank.com
Notice to the Company shall be addressed as follows until Holder receives notice of a change in address:
The Beachbody Company, Inc.
400 Continental Boulevard, Suite 400
El Segundo, CA 90245
Attention: [●]
Email: [●]
with a copy to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, CA 90067
Attention: Steven B. Stokdyk
Email: steven.stokdyk@lw.com
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties have caused this Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
THE BEACHBODY COMPANY, INC.
By:
Name:
Title:
Agreed and Accepted:
[●]
By:
Name:
Title:
APPENDIX 1
NOTICE OF EXERCISE
[ ] Check in the amount of $___________ payable to order of the Company enclosed herewith
[ ] Wire transfer of immediately available funds to the Company’s account
[ ] Cashless exercise pursuant to Section 1.2 of the Warrant
[ ] Other [Describe] __________________________________________
Holder’s Name
(Address)
HOLDER:
[_________________________]
By:
Name:
Title:
Date: