Attached files
file | filename |
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S-1/A - AMENDMENT NO. 1 TO REGISTRATION STATEMENT - Celsius Holdings, Inc. | fs10110a1_celsius.htm |
EX-1.1 - UNDERWRITING AGREEMENT - Celsius Holdings, Inc. | fs10110a1ex1i_celsius.htm |
EX-5.1 - OPINION OF COUNSEL - Celsius Holdings, Inc. | fs10110a1ex5i_celsius.htm |
EX-4.6 - SPECIMEN COMMON STOCK CERTIFICATE - Celsius Holdings, Inc. | fs10110a1ex4vi_celsius.htm |
EX-23.1 - CONSENT OF SHERB & CO. - Celsius Holdings, Inc. | fs10110a1ex23i_celsius.htm |
EX-3.4 - CERTIFICATE OF CHANGE - Celsius Holdings, Inc. | fs10110a1ex3iv_celsius.htm |
EX-4.7 - WARRANT AGREEMENT WITH ATTACHED FORM OF WARRANT - Celsius Holdings, Inc. | fs10110a1ex4vii_celsius.htm |
EXHIBIT
4.5
THE
SECURITIES REPRESENTED BY THIS PURCHASE OPTION HAVE BEEN ACQUIRED FOR
INVESTMENT. THIS PURCHASE OPTION AND THE SHARES OF COMMON STOCK AND
WARRANTS ISSUABLE UPON EXERCISE OF THIS PURCHASE OPTION (AND THE SHARES OF
COMMON STOCK UNDERLYING SUCH WARRANTS) MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR AN
EXEMPTION THEREFROM UNDER THE SECURITIES ACT AND UNDER STATE SECURITIES
LAWS. THIS PURCHASE OPTION AND THE SHARES OF COMMON STOCK AND
WARRANTS ISSUABLE UPON EXERCISE OF THIS PURCHASE OPTION (AND THE SHARES OF
COMMON STOCK UNDERLYING SUCH WARRANTS) MAY NOT BE PLEDGED, SOLD, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO THE EXPRESS PROVISIONS
OF PURCHASE OPTION, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF
PURCHASE OPTION SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH PROVISIONS
SHALL HAVE BEEN COMPLIED WITH.
Date of
Issuance: _________________, 2010
CELSIUS
HOLDINGS, INC.
Unit Purchase
Option
(Common
Stock and Warrants)
(Void
after ________________, 2015)
Celsius
Holdings, Inc., a Nevada corporation (the “Company”), for value received, hereby
certifies and agrees that ________________________ or its registered assigns
(the “Registered Holder”), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time or from time to time on or after the date
hereof (the “Date of Issuance”) and on or before ____________, 2013 at not later
than 5:00 p.m. New York time (such date and time, the “Expiration Time”),
___________________________ (___________) units (“Units”), each Unit consisting
of four (4) duly authorized, validly issued, fully paid and nonassessable shares
of the Company’s common stock, $0.001 par value per share (the “Common Stock”)
and one common stock purchase warrant (“Warrant”) at an initial exercise price
equal to $______ per unit, subject to adjustment in certain cases as described
herein. The Warrants are identical to, of the same class and have the
same terms as the warrants issued in the offering of units by the Company
pursuant to the underwriting agreement, dated as of _____, 2010 (“Underwriting
Agreement”) by and among the Company and the underwriters of such
offering pursuant to the prospectus, dated ______, 2010 (the
“Offering”). The shares issuable upon exercise of this Purchase
Option are hereinafter referred to as the “Option Shares” or
“Shares,” the Warrants issuable upon exercise of this Purchase Option
are referred to herein as the “Option Warrants” or “Warrants” and the purchase
price per Unit is referred to hereinafter as the “Exercise
Price.” The term “this Purchase Option” as used herein shall include
this Purchase Option and any other purchase option delivered in substitution or
exchange therefor, as provided herein. This Purchase Option is issued pursuant
to the terms of the Underwriting Agreement.
1
1. Exercise.
1.1 Method of
Exercise
(a) This
Purchase Option may be exercised by the Registered Holder, in whole or in part,
by surrendering this Purchase Option, with a Notice of Exercise in the form of
Annex A hereto
(the “Notice of Exercise”) duly executed by such Registered Holder or by such
Registered Holder’s duly authorized attorney, at the principal office of the
Company set forth in Section 10 hereof, or at such other office or agency as the
Company may designate in writing pursuant to Section 10 hereof (the “Company’s
Office”), accompanied by payment in full with good, cleared funds, in lawful
money of the United States, of the Exercise Price payable in respect of the
number of Units purchased upon such exercise or by surrendering the this
Purchase Option pursuant to Section 1.2 below.
(b) Each
exercise of this Purchase Option shall be deemed to have been effected
immediately prior to the close of business on the day on which the Notice of
Exercise shall be received by the Company as provided in Section 1.1(a) hereof.
At such time, the person or persons in whose name or names any certificates for
Option Shares and/or Option Warrants shall be issuable upon such exercise as
provided in Section 1.1(c) hereof shall be deemed to have become the holder or
holders of record of the Options Shares and/or Warrants represented by such
certificates.
(c) As soon
as practicable after the exercise of this Purchase Option, in full or in part,
and in any event within ten (10) days thereafter, the Company, at its expense,
will cause to be issued in the name of, and delivered to, the Registered Holder,
or as such Registered Holder (upon payment by such Registered Holder of any
applicable transfer taxes) may direct:
(i) a
certificate or certificates for the number of full Option Shares and/or Option
Warrants to which such Registered Holder shall be entitled upon such exercise
plus, in lieu of any fractional security to which such Registered Holder would
otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case
such exercise is in part only, a new this Purchase Option or this Purchase
Options (dated the date hereof) of like tenor, representing in the aggregate on
the face or faces thereof the number of Units called for on the face
of this Purchase Option minus the number of Units purchased by the Registered
Holder upon such exercise or surrender as provided herein.
1.2 Exercise by Surrender of
this Purchase Option. In lieu of the payment of the Exercise
Price multiplied by the number of Units for which this Purchase Option is
exercisable in the manner required by Section 1.1, the Holder shall have the
right (but not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into Units
2
(“Conversion
Right”) as follows: upon exercise of the Conversion Right, the
Company shall deliver to the Holder (without payment by the Holder of any of the
Exercise Price in cash) that number of Units equal to the quotient obtained by
dividing (x) the “Value” (as defined below) of the portion of the this Purchase
Option being converted by (y) the Current Market Value (as defined
below). The “Value” of the portion of the this Purchase Option being
converted shall equal the remainder derived from subtracting (a) (i) the
Exercise Price multiplied by (ii) the number of Units underlying the portion of
this Purchase Option being converted from (b) the Current Market Value of a Unit
multiplied by the number of Units underlying the portion of the this Purchase
Option being converted. As used herein, the term “Current Market
Value” per Unit at any date means the remainder derived from subtracting (x) the
exercise price of the Warrants multiplied by the number of shares of Common
Stock issuable upon exercise of the Warrants underlying one Unit from (y) the
Current Market Price of the Common Stock multiplied by the number of shares of
Common Stock underlying the Warrants and the Common Stock issuable upon exercise
of one Unit. Notwithstanding the foregoing, in the event that the
Units are still trading, the “Current Market Value” of the Units shall mean (i)
if the Units are listed on a national securities exchange or quoted on Nasdaq or
NASD OTC Bulletin Board (or successor such as the Bulletin Board Exchange), the
last sale price of the Units in the principal trading market for the Units as
reported by the exchange, Nasdaq or the NASD, as the case may be, on the last
trading day preceding the date in question; or (ii) if the Units are not listed
on a national securities exchange or quoted on Nasdaq or the NASD OTC Bulletin
Board (or successor exchange), but is traded in the residual over-the-counter
market, the closing bid price for Units on the last trading day preceding the
date in question for which such quotations are reported by the Pink Sheets, LLC
or similar publisher of such quotations. The “Current Market Price”
of a share of Common Stock shall mean (i) if the Common Stock is listed on a
national securities exchange or quoted on Nasdaq or NASD OTC Bulletin Board (or
successor such as the Bulletin Board Exchange), the last sale price of the
Common Stock in the principal trading market for the Common Stock as reported by
the exchange, Nasdaq or the NASD, as the case may be; (ii) if the Common Stock
is not listed on a national securities exchange or quoted on Nasdaq or the NASD
OTC Bulletin Board (or successor such as the Bulletin Board Exchange), but is
traded in the residual over-the-counter market, the closing bid price for the
Common Stock on the last trading day preceding the date in question for which
such quotations are reported by the Pink Sheets, LLC or similar publisher of
such quotations; and (iii) if the fair market value of the Common Stock cannot
be determined pursuant to clause (i) or (ii) above, such price as the Board of
Directors of the Company shall determine, in good faith.
1.3 Mechanics of Cashless
Exercise. The Cashless Exercise Right may be exercised by the
Holder on any business day on or after the Commencement Date and not later than
the Expiration Date by delivering the this Purchase Option with the duly
executed exercise form attached hereto with the cashless exercise section
completed to the Company, exercising the Cashless Exercise Right and specifying
the total number of Units the Holder will purchase pursuant to such Cashless
Exercise Right.
2. Securities to be Fully Paid;
Reservation of Securities. The Company covenants that all shares of
Common Stock and Warrants which may be issued upon the exercise of the rights
represented by this Purchase Option (and the shares of Common Stock which may be
issued upon exercise of such Warrants) will, upon issuance by the Company, be
duly and validly
3
issued,
fully paid and nonassessable, and free from preemptive rights and free from all
taxes, liens, duties and charges with respect thereto and, in addition, the
Company covenants that it will from time to time take all such action as may be
requisite to assure that the par value per share of the Common Stock is at all
times equal to or less than the effective Exercise Price. The Company
further covenants that, from and after the Date of Issuance and during the
period within which the rights represented by this Purchase Option may be
exercised, the Company will at all times have authorized and reserved, free from
preemptive rights, out of its authorized but unissued shares of Common Stock,
solely for the purpose of effecting the exercise of this Purchase Option, a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Purchase Option (and the exercise of the Warrant
issuable hereunder). If at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the exercise
of this Purchase Option (and the Warrant issuable hereunder), the Company shall
take any and all corporate action as is necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose. The Company will take all such action within its
control as may be necessary on its part to assure that all such shares of Common
Stock (and all Warrants and the shares of Common Stock issuable upon exercise of
the Warrants) may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange upon
which the Common Stock and/or Warrants of the Company may be
listed.
3. Fractional Shares.
The Company shall not be required upon the exercise of this Purchase Option to
issue any fractional shares or Warrants, but shall make an adjustment therefor
in cash on the basis of the Market Value for each fractional share of the
Company’s Common Stock and fractional Warrants which would be issuable upon
exercise of this Purchase Option.
4. Requirements for
Transfer.
(a) Register. The Company
will maintain a register (the “this Purchase Option Register”) containing the
names and addresses of the Registered Holder or Registered Holders. Any
Registered Holder of this Purchase Option or any portion thereof may change its
address as shown on the this Purchase Option Register by written notice to the
Company requesting such change, and the Company shall promptly make such change.
Until this Purchase Option is transferred on the this Purchase Option Register
of the Company, the Company may treat the Registered Holder as shown on the this
Purchase Option Register as the absolute owner of this Purchase Option for all
purposes, notwithstanding any notice to the contrary, provided, however, that if
and when this Purchase Option is properly assigned in blank, the Company may,
but shall not be obligated to, treat the bearer hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the
contrary.
(b) Agent. The Company
may, by written notice to the Registered Holder, appoint an agent for the
purpose of maintaining the this Purchase Option Register referred to in Section
4(a) hereof, issuing the Common Stock and Warrants issuable upon the exercise of
this Purchase Option, exchanging this Purchase Option, replacing this Purchase
Option or any or all of the foregoing. Thereafter, any such registration,
issuance, exchange, or replacement, as the case may be, may be made at the
office of such agent.
4
(c) Transfer. Subject to
the provisions of applicable securities laws and this Section 4, this Purchase
Option and all rights hereunder are transferable, in whole or in part, upon the
surrender of this Purchase Option with a properly executed Assignment Form in
substantially the form attached hereto as Annex B (the
“Assignment”) at the principal office of the Company.
(d) Exchange of Warrant Upon a
Transfer. On surrender of this Purchase Option for exchange, properly
endorsed on the Assignment and subject to the provisions of this Purchase Option
and limitations on assignments and transfers as contained in this Section 4, the
Company at its expense shall issue to or on the order of the Registered Holder a
new warrant or warrants of like tenor, in the name of the Registered Holder or
as the Registered Holder (on payment by the Registered Holder of any applicable
transfer taxes) may direct, for the number of shares issuable upon exercise
hereof.
(e) Certain
restrictions. Notwithstanding anything to the contrary,
neither this Purchase Option nor the shares of Common Stock or Warrants issuable
upon exercise hereof (or the shares issuable upon the exercise of
such Warrants) shall be sold by the Registered Holder during the Offering, or
sold, transferred, assigned, pledged, or hypothecated, or be the subject of any
hedging, short sale, derivative, put, or call transaction by the Registered
Holder that would result in the effective economic disposition of this Purchase
Option or the Common Stock underlying this Purchase Option for a period
(“Restricted Period”) of 180 days immediately following the date of commencement
of the Offering. Notwithstanding the foregoing, the following shall
not be prohibited during the Restricted Period:
(i) the
transfer of any security;
A. by
operation of law or by reason of reorganization of the Company or the Registered
Holder;
B. to any
FINRA member participating in the Offering and the officers or partners thereof,
if all securities so transferred remain subject to the lock-up restrictions
above for the remainder of the Restricted Period;
C. if the
aggregate amount of securities of the Company held by the Registered Holder does
not exceed 1% of the securities being offered; or
D. that is
beneficially owned on a pro-rata basis by all equity owners of an investment
fund, provided that no participating member manages or otherwise directs
investments by the fund, and participating members in the aggregate do not own
more than 10% of the equity in the fund.
(ii) the
exercise of this Purchase Option if all securities received upon such exercise
remain subject to the lock-up restrictions of this Section for the remainder of
the Restricted Period.
5
5. Registration
Rights.
5.1 Demand
Registration.
5.1.1 Grant of Right. The
Company, upon written demand (an “Demand Notice”) of the Holder(s) of at least
51% (the “Majority Holders”) of this Purchase Option or the underlying Shares or
underlying Warrants agrees to register all or any portion of the Shares and
Warrants underlying this Purchase Option and the Shares underlying the Warrants
(collectively, the “Registrable Securities”) as requested by the Majority
Holders. The Company will file a registration statement or a post-effective
amendment to the Registration Statement covering the Registrable Securities
within sixty (60) days after receipt of the Initial Demand Notice and use its
commercially reasonable efforts to have such registration statement or
post-effective amendment declared effective as soon as possible thereafter,
subject to compliance with review by the SEC. The demand for registration may be
made at any time beginning on the Commencement Date. The Company covenants and
agrees to give written notice of its receipt of any Demand Notice by any
Holder(s) to all other registered Holders of the Warrant and/or the Registrable
Securities within ten (10) days from the date of the receipt of any such Demand
Notice. [Notwithstanding anything to the
contrary, if a demand for registration is made under this Section 5.1 during the
first fiscal quarter of any year, the Company shall have the right to delay
filing the registration statement to a date no later than the later of (1) the
original 60 day requirement above and (2) ten days after the timely filing of
its Annual Report on Form 10-K for the most recently completed fiscal
year. Further, if the Board reasonably determines in good faith that
it is not in the overall best interest of the Company to file such a
registration statement at the time demand is made because of an offering or
transaction already approved by the board, the Company shall have the right to
delay filing of the requested registration statement for an additional 30 days
(or 90 days total from the date of the Demand Notice). The period of
any deferment or delay in accordance with any of the foregoing shall be tacked
on to the end of the term of these registration rights under Section ______.
][Note: This addresses prior company counsel comment; but would question why it
is necessary when company already has 60 days from notice to file][Let’s
discuss]
5.1.2 Terms. The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses (up to a maximum of
$10,000) of one legal counsel selected by the Majority Holders to
represent them in connection with the registration of the Registrable
Securities, but the Holders shall pay any and all underwriting
commissions. The Company agrees to use its reasonable best efforts to
qualify or register the Registrable Securities in such States as are reasonably
requested by the Majority Holder(s); provided, however, that in no event shall
the Company be required to register the Registrable Securities in a State in
which such registration would cause (i) the Company to be obligated to qualify
to do business in such State, or would subject the Company to taxation as a
foreign corporation doing business in such jurisdiction or (ii) the principal
stockholders of the Company to be obligated to escrow their shares of capital
stock of the Company. The Company shall cause any registration statement or
post-effective amendment filed pursuant to the demand rights granted under
Section 5.1.1 to remain effective for a period of the later of (1) the exercise
period of this Purchase Option and (2) two years from the effective date of such
registration statement or post-effective amendment.
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5.2 “Piggy-Back”
Registration.
5.2.1 Grant of
Right. In addition to the demand right of registration, the
Holders of the this Purchase Options shall have the right for a period of seven
years commencing on the Effective Date, to include the Registrable Securities as
part of any other registration of securities filed by the Company (other than in
connection with a transaction contemplated by Rule 145(a) promulgated under the
Act or pursuant to Form S-8); provided, however, that if, in the written opinion
of the Company’s managing underwriter or underwriters, if any, for such
offering, the inclusion of the Registrable Securities, when added to the
securities being registered by the Company or the selling stockholder(s), will
exceed the maximum amount of the Company’s securities which can be marketed (i)
at a price reasonably related to their then current market value, and (ii)
without materially and adversely affecting the entire offering, then the Company
will still be required to include the Registrable Securities, but may require
the Holders to agree, in writing, to delay the sale of all or any portion of the
Registrable Securities for a period of 90 days from the effective date of the
offering, provided, further, that if the sale of any Registrable Securities is
so delayed, then the number of securities to be sold by all stockholders in such
public offering during such 90 day period shall be apportioned pro rata among
all such selling stockholders, including all holders of the Registrable
Securities, according to the total amount of securities of the Company owned by
said selling stockholders, including all holders of the Registrable
Securities.
5.2.2 Terms. The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses (up to a maximum of $10,000) of
one legal counsel selected by the Holders to represent them in connection with
the sale of the Registrable Securities but the Holders shall pay any and all
underwriting commissions related to the Registrable Securities. In
the event of such a proposed registration, the Company shall furnish the then
Holders of outstanding Registrable Securities with not less than fifteen days
written notice prior to the proposed date of filing of such registration
statement. Such notice to the Holders shall continue to be given for
each applicable registration statement filed (during the period in which the
this Purchase Option is exercisable) by the Company until such time as all of
the Registrable Securities have been registered and sold. The holders
of the Registrable Securities shall exercise the “piggy back” rights provided
for herein by giving written notice, within ten days of the receipt of the
Company’s notice of its intention to file a registration
statement. The Company shall cause any registration statement filed
pursuant to the above “piggyback” rights to remain effective for at least nine
months from the date that the Holders of the Registrable Securities are first
given the opportunity to sell all of such securities.
5.3 Damages. Should
the registration or the effectiveness thereof required by Sections 5.1 and 5.2
hereof be delayed by the Company or the Company otherwise fails to comply with
such provisions, the Company shall, in addition to any other equitable or other
relief available to the Holder(s), be liable for any and all incidental, special
and consequential damages sustained by the Holder(s), including, but not limited
to, the loss of any profits that might have been received by the holder upon the
sale of shares of Common Stock or Warrants (and shares of Common Stock
underlying the Warrants) underlying this Purchase Option.
7
5.4 General
Terms.
5.4.1 Indemnification. The
Company shall indemnify the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement hereunder and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”),
against all loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in investigating,
preparing or defending against litigation, commenced or threatened, or any claim
whatsoever whether arising out of any action between the Underwriter and the
Company or between the Underwriter and any third party or otherwise) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement but only to the same extent and with
the same effect as the provisions pursuant to which the Company has agreed to
indemnify the Underwriters contained in Section 7 of the Underwriting
Agreement. The Holder(s) of the Registrable Securities to be sold
pursuant to such registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and directors
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage, expense or liability (including all reasonable attorneys’ fees and other
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which they may become subject under the Act, the
Exchange Act or otherwise, arising from information furnished by or on behalf of
such Holders, or their successors or assigns, in writing, for specific inclusion
in such registration statement to the same extent and with the same effect as
the provisions contained in Section 7 of the Underwriting Agreement pursuant to
which the Underwriters have agreed to indemnify the Company.
5.4.2 Exercise of this Purchase
Options. Nothing contained in this Purchase Option shall be
construed as requiring the Holder(s) to exercise their this Purchase Options or
Warrants underlying such this Purchase Options prior to or after the initial
filing of any registration statement or the effectiveness thereof.
5.4.3 Documents Delivered to
Holders. The Company shall furnish Ladenburg Thalmann &
Co, Inc., as representative of the Holders participating in any of the foregoing
offerings, a signed counterpart, addressed to the participating Holders, of (i)
an opinion of counsel to the Company, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, an opinion dated the date of the closing under any underwriting
agreement related thereto), and (ii) a “cold comfort” letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company’s financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants’ letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer’s counsel
8
and in
accountants’ letters delivered to underwriters in underwritten public offerings
of securities. The Company shall also deliver promptly to Ladenburg
Thalmann & Co., Inc., as representative of the Holders participating in the
offering, the correspondence and memoranda described below and copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the registration statement and permit Ladenburg Thalmann & Co.,
Inc., as representative of the Holders, to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. (“NASD”). Such investigation shall include access to
books, records and properties and opportunities to discuss the business of the
Company with its officers and independent auditors, all to such reasonable
extent and at such reasonable times and as often as Ladenburg Thalmann &
Co., Inc., as representative of the Holders, shall reasonably
request. The Company shall not be required to disclose any
confidential information or other records to Ladenburg Thalmann & Co, Inc.,
as representative of the Holders, or to any other person, until and unless such
persons shall have entered into reasonable confidentiality agreements (in form
and substance reasonably satisfactory to the Company), with the Company with
respect thereto.
5.4.4 Underwriting
Agreement. The Company shall enter into an underwriting
agreement with the managing underwriter(s), if any, selected by any Holders
whose Registrable Securities are being registered pursuant to this Section 5,
which managing underwriter shall be reasonably acceptable to the
Company. Such agreement shall be reasonably satisfactory in form and
substance to the Company, each Holder and such managing underwriters, and shall
contain such representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that type used by the
managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such
Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution. Such Holders, however, shall agree to such
covenants and indemnification and contribution obligations for selling
stockholders as are customarily contained in agreements of that type used by the
managing underwriter. Further, such Holders shall execute appropriate
custody agreements and otherwise cooperate fully in the preparation of the
registration statement and other documents relating to any offering in which
they include securities pursuant to this Section 5. Each Holder shall
also furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities.
5.4.5 Rule 144
Sale. Notwithstanding anything contained in this Section 5 to
the contrary, the Company shall have no obligation pursuant to Sections 5.1 or
5.2 for the registration of Registrable Securities held by any Holder (i) where
such Holder would then be entitled to sell under Rule 144 within any three-month
period (or such other period prescribed under Rule 144 as may be provided by
amendment thereof) all of the Registrable Securities then held by such Holder,
and (ii) where the number of Registrable Securities held by such Holder is
within the volume limitations under paragraph (e) of Rule 144 (calculated as if
such Holder were an affiliate within the meaning of Rule 144).
9
5.4.6 Supplemental
Prospectus. Each Holder agrees, that upon receipt of any
notice from the Company of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, such Holder will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Holder’s
receipt of the copies of a supplemental or amended prospectus, and, if so
desired by the Company, such Holder shall deliver to the Company (at the expense
of the Company) or destroy (and deliver to the Company a certificate of such
destruction) all copies, other than permanent file copies then in such Holder’s
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
6. Adjustment.
6.1 Adjustments to Exercise
Price and Number of Securities. The Exercise Price and the
number of Units underlying the this Purchase Option shall be subject to
adjustment from time to time as hereinafter set forth:
6.1.1 Stock
Dividends Split Ups. If after the date
hereof, and subject to the provisions of Section 6.4 below, the number of
outstanding shares of Common Stock is increased by a stock dividend payable in
shares of Common Stock or by a split up of shares of Common Stock or other
similar event, then, on the effective date thereof, the number of shares of
Common Stock underlying each of the Units purchasable hereunder shall be
increased in proportion to such increase in outstanding shares. In
such case, the number of shares of Common Stock, and the exercise price
applicable thereto, underlying the Warrants underlying each of the Units
purchasable hereunder shall be adjusted in accordance with the terms of the
Warrants.
6.1.2 Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section 6.4, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination or reclassification of shares of
Common Stock or other similar event, then, on the effective date thereof, the
number of shares of Common Stock underlying each of the Units purchasable
hereunder shall be decreased in proportion to such decrease in outstanding
shares. In such case, the number of shares of Common Stock, and the
exercise price applicable thereto, underlying the Warrants underlying each of
the Units purchasable hereunder shall be adjusted in accordance with the terms
of the Warrants.
6.1.3 Replacement of Securities
upon Reorganization, etc. In case of any reclassification or
reorganization of the outstanding shares of Common Stock other than a change
covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of
such shares of Common Stock, or in the case of any merger or consolidation of
the Company with or into
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another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation or entity of the property of the
Company as an entirety or substantially as an entirety in connection with which
the Company is dissolved, the Holder of this Purchase Option shall have the
right thereafter (until the expiration of the right of exercise of this Purchase
Option) to receive upon the exercise hereof, for the same aggregate Exercise
Price payable hereunder immediately prior to such event, the kind and amount of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, reorganization, merger or consolidation, or upon a
dissolution following any such sale or transfer, by a Holder of the number of
shares of Common Stock of the Company obtainable upon exercise of this Purchase
Option and the underlying Warrants immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered by
Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections
6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section
6.1.3 shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
6.1.4 Changes in Form of this
Purchase Option. This form of this Purchase Option need not be
changed because of any change pursuant to this Section, and this Purchase
Options issued after such change may state the same Exercise Price and the same
number of Units as are stated in the this Purchase Options initially issued
pursuant to this Agreement. The acceptance by any Holder of the
issuance of new this Purchase Options reflecting a required or permissive change
shall not be deemed to waive any rights to an adjustment occurring after the
Commencement Date or the computation thereof.
6.2 [Intentionally
Omitted]
6.3 Substitute this Purchase
Option. In case of any consolidation of the Company with, or
merger of the Company with, or merger of the Company into, another corporation
(other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental this Purchase Option providing that the holder of each this
Purchase Option then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such this Purchase Option) to
receive, upon exercise of such this Purchase Option, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation or merger, by a holder of the number of shares of Common Stock of
the Company for which such this Purchase Option might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental this Purchase Option shall provide for adjustments which shall be
identical to the adjustments provided in Section 6. The above provision of this
Section shall similarly apply to successive consolidations or
mergers.
6.4 Elimination of Fractional
Interests. The Company shall not be required to issue
certificates representing fractions of shares of Common Stock or Warrants upon
the exercise of the this Purchase Option, nor shall it be required to issue
scrip or pay cash in lieu of any fractional interests, it being the intent of
the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of Warrants, shares of Common Stock or
other securities, properties or rights.
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7. Reservation and
Listing. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of the this Purchase Options or the Warrants
underlying the this Purchase Option, such number of shares of Common Stock or
other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of
the this Purchase Options and payment of the Exercise Price therefor, all shares
of Common Stock and other securities issuable upon such exercise shall be duly
and validly issued, fully paid and non-assessable and not subject to preemptive
rights of any stockholder. The Company further covenants and agrees
that upon exercise of the Warrants underlying the this Purchase Options and
payment of the respective Warrant exercise price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights of
any stockholder. As long as the this Purchase Options shall be
outstanding, the Company shall use its best efforts to cause all (i) Units
and shares of Common Stock issuable upon exercise of the this Purchase Options,
(iii) Warrants issuable upon exercise of the this Purchase Options and (iv)
shares of Common Stock issuable upon exercise of the Warrants
included in the Units issuable upon exercise of the this Purchase Option to be
listed (subject to official notice of issuance) on all securities exchanges or
Nasdaq, as applicable on which the Common Stock or the Warrants issued to the
public in accordance with the Underwriting Agreement may then be listed and/or
quoted.
8. No Impairment. The
Company will not, by amendment of its Certificate of Incorporation or through
any reorganization, recapitalization, sale or transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Purchase Option but will at all times in good faith carry out all such terms and
take all such actions as may be reasonably necessary or appropriate in order to
protect the rights herein of the holder of this Purchase Option against dilution
or other impairment.
9. Notices of Record Date,
Etc. In case the Company shall take a record of the holders of
its Common Stock or Warrants (or other stock or securities at the time
deliverable upon the exercise of this Purchase Option) for the purpose of
entitling or enabling them to receive any dividend or other distribution, or to
receive any right to subscribe for or purchase any shares of stock of any class
or any other securities, or to receive any other right; or of any capital
reorganization of the Company, any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
surviving entity), or any transfer of all or substantially all of the assets of
the Company; or of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will mail or
cause to be mailed to the Registered Holder of this Purchase Option a notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed,
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as of
which the holders of record of Common Stock or Warrants (or such other stock or
securities at the time deliverable upon the exercise of this Purchase Option)
shall be entitled to exchange their shares of Common Stock (or such other stock
or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. The Company will use commercially
reasonable efforts to cause such notice to be mailed promptly, and in any event,
at least twenty (20) business days prior to the record date or effective date
for the event specified in such notice unless such prior notice is waived by the
Registered Holder in writing.
10. No Rights of
Stockholders. Subject to other Sections of this Purchase
Option, the Registered Holder shall not be entitled to vote, to receive
dividends or subscription rights, nor shall anything contained herein be
construed to confer upon the Registered Holder, as such, any of the rights of a
stockholder of the Company, including without limitation any right to vote for
the election of directors or upon any matter submitted to stockholders, to give
or withhold consent to any corporate action (whether upon any recapitalization,
issuance of stock, reclassification of stock, change of par value or change of
stock to no par value, consolidation, merger, conveyance, or otherwise), to
receive notices, or otherwise, until the this Purchase Option shall have been
exercised as provided herein.
11. Replacement of this Purchase
Option. Upon receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Purchase Option and (in
the case of loss, theft or destruction) upon delivery of an indemnity agreement
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Purchase Option, the Company will issue, in
lieu thereof, a new this Purchase Option of like tenor.
12. Mailing of Notices,
Etc.
(a) All
notices, requests, consents, and other communications in connection with this
Purchase Option shall be in writing and shall be deemed delivered (i) three (3)
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid, (ii) one (1) business day after being sent via a
reputable overnight courier service guaranteeing next business day delivery in
the Holder’s country or region, or (iii) on actual receipt if delivered by
facsimile or by hand, in each case delivery shall be made to the intended
recipient as set forth below:
If to the Company:
Celsius
Holdings, Inc.
140 NE
4th Avenue, Suite C
Delray
Beach, FL 33483
Attention: CEO and
CFO
Facsimile: (561)
276-2268
If to the
Registered Holder:
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To the
address set forth in the this Purchase Option Register as described in Section 4
hereof
With a
copy in all cases to:
Graubard
Miller
405
Lexington Avenue
New York,
New York 10174
Facsimile
No.: (212) 818-8881
Attention:
David Alan Miller, Esq.
and
Arnstein
& Lehr LLP
200 East
Las Olas Boulevard
Suite
1700
Fort
Lauderdale, Florida 33301-2299
Attention: Dale
S. Bergman, Esq.
Facsimile:
(954) 713-7738
13. Change or Waiver. Any
term of this Purchase Option may be changed or waived only by an instrument in
writing signed by the party against which enforcement of the change or waiver is
sought.
14. Headings. The
headings in this Purchase Option are for purposes of reference only and shall
not limit or otherwise affect the meaning of any provision of this Purchase
Option.
15. Severability. If
any provision of this Purchase Option shall be held to be invalid and
unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Purchase Option.
16. Governing Law and Submission
to Jurisdiction. This Purchase Option will be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflict or choice of laws of any jurisdiction. The
parties hereby agree that any action, proceeding or claim against it arising out
of, or relating in any way to this Purchase Option shall be brought and enforced
in the courts of the State of New York, and irrevocably submit to such
jurisdiction, which jurisdiction shall be exclusive.
17. Supplements and
Amendments. The Company and the Registered Holder may from
time to time supplement or amend this Purchase Option in order to cure any
ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Holder may deem necessary or desirable.
18. Successors. All
the covenants and provisions of this Purchase Option shall be binding upon and
inure to the benefit of the Company and the Registered Holder and their
respective successors and assigns hereunder.
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19. Benefits of this Purchase
Option. Nothing in this Purchase Option shall be construed to
give to any person, entity or corporation other than the Company and the
Registered Holder of the Warrant Certificate any legal or equitable right,
remedy or claim under this Purchase Option; and this Purchase Option shall be
for the sole and exclusive benefit of the Company and the Registered Holder of
the Warrant Certificate.
IN
WITNESS WHEREOF, CELSIUS HOLDINGS, INC. has caused this Purchase Option to be
signed by its duly authorized officers under its corporate seal and to be dated
on the day and year first written above.
CELSIUS HOLDINGS,
INC.
By:_________________________________
Name:
Title:
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Form to
be used to exercise this Purchase Option:
Celsius
Holdings, Inc.
Date:_________________,
201____
The
undersigned hereby elects irrevocably to exercise all or a portion of the within
this Purchase Option and to purchase ____ Units of Celsius Holdings, Inc., and
hereby makes payment of $____________ (at the rate of $_________ per Unit) in
payment of the Exercise Price pursuant thereto. Please issue the
Common Stock and Warrants to which this Purchase Option is exercised in
accordance with the instructions given below.
or
The
undersigned hereby elects irrevocably to convert its right to purchase ________
Units purchasable under the within this Purchase Option by surrender of the
unexercised portion of the attached this Purchase Option (with a “Value” based
of $_______ based on a “Market Price” of $_______). Please issue the
securities comprising the Units as to which this Purchase Option is exercised in
accordance with the instructions given below.
______________________________
Signature
______________________________
Signature
Guaranteed
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name_____________________________________________________________
(Print in
Block Letters)
Address__________________________________________________________
NOTICE:
The signature to this form must correspond with the name as written upon the
face of the within this Purchase Option in every particular without alteration
or enlargement or any change whatsoever, and must be guaranteed by a bank, other
than a savings bank, or by a trust company or by a firm having membership on a
registered national securities exchange.
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Form to
be used to assign this Purchase Option:
ASSIGNMENT
(To be
executed by the registered Holder to effect a transfer of the within this
Purchase Option):
FOR VALUE
RECEIVED,_______________________________________ does hereby sell, assign and
transfer unto___________________________________________ the right to purchase
________ Units of Celsius Holdings, Inc. (“Company”) evidenced by the within
this Purchase Option and does hereby authorize the Company to transfer such
right on the books of the Company.
Dated:___________________,
201____
__________________________
Signature
____________________________
Signature Guaranteed
NOTICE:
The signature to this form must correspond with the name as written upon the
face of the within this Purchase Option in every particular without alteration
or enlargement or any change whatsoever, and must be guaranteed by a bank, other
than a savings bank, or by a trust company or by a firm having membership on a
registered national securities exchange.
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