EXHIBIT 10.52
THE SECURITIES REPRESENTED BY THIS AMENDED AND RESTATED WARRANT AGREEMENT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL IN FORM AND FROM
COUNSEL REASONABLY ACCEPTABLE TO CASTLE BRANDS THAT THE TRANSACTION SHALL NOT
RESULT IN A VIOLATION OF STATE OR FEDERAL SECURITIES LAWS.
AMENDED AND RESTATED WARRANT AGREEMENT
ORIGINAL ISSUANCE DATE: December 1, 2003
PARTIES: Keltic Financial Partners, LP ("Keltic")
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
Castle Brands Inc. ("Castle Brands")
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RECITALS:
1. This Warrant Agreement was entered into on December 1, 2003 (the
"Original Warrant Agreement") in connection with that certain Revolving Loan
Agreement between GSRWB, Inc. (the predecessor to Castle Brands) and Keltic
dated as of August 27, 2002, as amended from time to time through the date
hereof, and related loan and security documents (collectively, the "Loan
Agreement").
2. This Amended and Restated Warrant Agreement, dated September 27, 2005
(this "Warrant Agreement") amends and restates the Original Warrant Agreement,
which shall be surrendered, cancelled and terminated and be null and void as of
the date of this Warrant Agreement, and supersedes all other prior warrants,
agreements, representations and warranties of any person in connection herewith.
NOW, THEREFORE, in consideration of the Loan Agreement and the mutual
agreements contained herein, the parties agree as follows:
SECTION 1 GRANT AND ACCEPTANCE OF WARRANT AGREEMENT
Castle Brands grants and delivers this Warrant Agreement to Keltic
entitling it and its permitted transferees under Section 4.3 below
(collectively, "Holder") subject to the terms and conditions set forth in this
Warrant Agreement, to purchase from the date of this Warrant Agreement to
September 1, 2014 (the "Expiration Date"), One Hundred Thousand (100,000) shares
of common stock, $.01 par value per share ("Common Stock"), of Castle Brands
from Castle Brands at the purchase price of Six Dollars ($6.00) per share
(subject to adjustment as hereafter provided), upon presentation of this Warrant
Agreement and payment of the purchase price in cash, certified check or bank
draft payable to Castle Brands or other form of payment acceptable to Castle
Brands at the office of Castle Brands at the address indicated above. Keltic
accepts and agrees to the terms and conditions of this Warrant Agreement.
SECTION 2 DURATION AND EXERCISE OF WARRANT AGREEMENT
2.1 Term. This Warrant Agreement shall become void unless it is exercised
and payment of the purchase price made prior to the Expiration Date.
2.2 Exercise of Warrant Agreement. This Warrant Agreement may be exercised
during its exercise period by Holder, and at its or their option, as to the
whole at any time or in part from time to time. If this Warrant Agreement is
exercised at one time for less than the maximum number of shares of Common Stock
purchasable upon the exercise hereof, Castle Brands shall issue to Holder a new
warrant agreement of like tenor and date representing the number of shares of
Common Stock equal to the difference between the number of shares purchasable
upon full exercise of this Warrant Agreement and the number of shares that were
purchased upon the exercise of this Warrant Agreement. To be exercised, this
Warrant Agreement must be surrendered by Holder for cancellation at the office
of Castle Brands accompanied with written instructions as to the number of
shares to be purchased and the payment of the purchase price. If Castle Brands,
in its sole discretion, elects to allow payment of all or a portion of the
purchase price in installments, Holder exercising this Warrant Agreement shall
also deliver a promissory note, in form satisfactory to Castle Brands, for the
deferred portion of the price secured by a pledge, also in a form satisfactory
to Castle Brands, of the shares of stock purchased by such exercise of this
Warrant Agreement.
2.3 Investment Interest. Unless the Underlying Shares (as hereinafter
defined) have been registered under the securities laws and a representation for
investment intent is not needed to comply with the securities laws, if required
by Castle Brands at the time of any exercise of this Warrant Agreement, as a
condition to such exercise, Holder shall enter into an agreement with Castle
Brands in form reasonably satisfactory to counsel for Castle Brands by which
Holder (1) shall represent that the shares are being acquired for Holder's own
account for investment and not with a view to, or for sale in connection with,
any resale or distribution of such shares, and (2) shall agree that, if Holder
should decide to sell, transfer, or otherwise dispose of any of such shares,
Holder may do so only in accordance with this Warrant Agreement and applicable
securities laws.
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SECTION 3 COVENANTS OF CASTLE BRANDS
3.1 Reservation of Stock. Castle Brands covenants that, while this Warrant
Agreement is exercisable, it shall reserve a sufficient number of shares to
provide for the delivery of shares pursuant to the exercise of this Warrant
Agreement.
3.2 Validly Issued Stock. Castle Brands covenants and agrees that all
shares of Common Stock that may be issued upon the exercise of this Warrant
Agreement shall, upon issuance, be duly and validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
purchase and the issuance of the shares.
3.3 Due Authorization. Castle Brands covenants that all acts and things
necessary have been done and performed to make this Warrant Agreement when
executed on behalf of Castle Brands, the valid, binding and legal obligation of
Castle Brands, and to authorize the execution and delivery of this Warrant
Agreement and the issuance of the shares upon exercise hereof.
3.4 By-laws. Castle Brands covenants that (i) the copy of the Bylaws
provided to Keltic prior to the execution of this Warrant Agreement will be a
complete and correct copy of the Bylaws upon the closing of Castle Brands'
initial public offering (the "IPO"); (ii) the Bylaws will be in full force and
effect upon the closing of the IPO; and (iii) no amendment shall be made to the
By-laws which shall adversely affect the Holder unless the rights of holders of
other derivative securities are similarly adversely affected or the Holder
consents to such amendment in writing.
SECTION 4 RESTRICTIONS ON TRANSFERABILITY
4.1 Transfer Restrictions. Unless and until registered or an exemption is
available from such registration, this Warrant Agreement and the shares of
Common Stock purchased upon exercise of this Warrant Agreement ("Purchased
Shares") or purchasable upon exercise of this Warrant Agreement ("Underlying
Shares") shall not be sold, assigned, transferred or pledged except upon the
conditions specified in Section 4 of this Warrant Agreement, which conditions
are intended to ensure compliance with the provisions of the applicable federal
and state securities laws.
4.2 Securities Compliance. Keltic represents that it is acquiring this
Warrant Agreement for its own account for investment, and not with the view to,
or for resale in connection with, any distribution thereof. Keltic understands
that this Warrant Agreement has not been registered under the Securities Act or
any applicable state securities laws by reason of specific exemptions from the
registration provisions of those securities laws, the availability of which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of Keltic's representation herein. Keltic acknowledges that
this Warrant Agreement, the Purchased Shares and the Underlying Shares must be
held indefinitely, unless subsequently registered under the Securities Act or
unless an exemption from registration is available.
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4.3 Transferees Bound By This Warrant Agreement. Notwithstanding anything
else to the contrary stated in this Warrant Agreement, no transfer shall be made
unless the transferee executes a counterpart copy of this Warrant Agreement, as
amended, pursuant to which the transferee agrees to be bound by the provisions
of this Warrant Agreement, as amended; provided, however, that this Section 4.3
shall not apply to the extent the Warrant Agreement or the Purchased Shares are
registered or an exemption from registration is available under applicable
securities laws.
4.4 Notice of Proposed Transfers. Prior to any proposed sale, assignment,
transfer or pledge of this Warrant Agreement or Purchased Shares, unless there
is in effect a registration statement under the Securities Act, covering the
proposed transfer, Holder shall give written notice to Castle Brands of its
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail and, if Castle Brands reasonably so
requests, shall be accompanied at Holder's expense by either (i) a written
opinion of legal counsel in form and from counsel reasonably acceptable to
Castle Brands which states that the proposed transfer of this Warrant Agreement
or Purchased Shares may be effected without registration under the Securities
Act or (ii) a "no action" letter from the Securities and Exchange Commission
(the "Commission") to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such Warrant
Agreement or Purchased Shares shall be entitled to transfer such Warrant
Agreement or Purchased Shares in accordance with the terms of the notice
delivered by Holder to Castle Brands. Castle Brands will not require such a
legal opinion or "no action" letter in any transaction in compliance with Rule
144 of the Commission. Each certificate evidencing the Purchased Shares
transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legends set forth in this
Warrant Agreement, except that such certificate shall not bear such restrictive
legends if in the opinion of counsel for Castle Brands such legends are not
required in order to establish compliance with any provisions of the Securities
Act.
4.5 Restrictive Legends. Each certificate representing the Purchased
Shares and any other securities issued in respect of the Purchased Shares upon
any stock split, stock dividend, recapitalization, merger, consolidation or
similar event unless the same are registered prior to exercise of this Warrant
Agreement, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL IN
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FORM AND FROM COUNSEL REASONABLY ACCEPTABLE TO CASTLE BRANDS THAT THE
TRANSACTION SHALL NOT RESULT IN A VIOLATION OF STATE OR FEDERAL SECURITIES
LAWS.
Holder consents to Castle Brands making a notation on its records and
giving instructions to any transfer agent of the Purchased Shares in order to
implement the restrictions on transfer established in this Warrant Agreement.
4.6 Modification of this Section. If a registration statement under the
Securities Act is hereafter filed with respect to this Warrant Agreement,
Purchased Shares or the Underlying Shares, the provisions in this Warrant
Agreement that would otherwise be required by this Section 4 shall be
appropriately modified or eliminated.
4.7 Otherwise Transferable. Subject to the transfer conditions set forth
in this Section 4, this Warrant Agreement and all rights hereunder are
transferable, in whole or in part, without charge to Holder, upon surrender of
this Warrant at the principal office of Castle Brands.
SECTION 5 CONVERSION RIGHT
5.1 Fair Market Value. For purposes of this Section 5: If the shares are
traded regularly in a public market, the fair market value of a share shall be
the closing price of the shares (or the closing price of the stock of Castle
Brands into which the shares are convertible) reported for the business day
immediately before Holder delivers its Conversion Notice to Castle Brands. If
the shares are not regularly traded in a public market, the Board of Directors
of Castle Brands shall determine fair market value of Castle Brands as a whole
(the "Enterprise Value") in its reasonable good faith judgment and the fair
market value of a share for purposes of this Warrant Agreement shall be an
amount equal to (x) the Enterprise Value divided by (y) the number of
outstanding shares of Common Stock. The foregoing notwithstanding, if Holder
advises the Board of Directors in writing that Holder disagrees with such
determination, then Castle Brands and Holder shall promptly agree upon a
reputable investment banking firm to undertake such valuation. All fees and
expenses of such investment banking firm shall be paid by Castle Brands. As used
in this Section 5 with respect to any share of Common Stock, the term "Fair
Market Value" means the value of such share determined as set forth in this
Section 5.1.
5.2 Conversion Right. In lieu of exercising this Warrant Agreement as
specified in Section 2, Holder may from time to time convert this Warrant
Agreement (the "Conversion Right"), in whole or in part, into a number of shares
of Common Stock equal to the Spread Value (as defined below) of the shares as to
which the Conversion Right is to be exercised divided by the Fair Market Value
of one share of Common Stock in effect immediately prior to such exercise of the
Conversion Right. As used herein, the "Spread Value" equals the product of (x)
the number of shares of Common Stock purchasable under this Warrant Agreement as
to which the Conversion Right is being exercised multiplied by (y) the amount by
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which (A) the Fair Market Value of one share exceeds (B) the Exercise Price (as
defined below) in effect immediately prior to such exercise of such Conversion
Right.
5.3 Conversion Notice. Subject to Section 7.6 of this Warrant Agreement,
the Conversion Right may be exercised by Holder, at any time, or from time to
time, prior to the Expiration Date, on any business day by delivering a written
notice (the "Conversion Notice") to Castle Brands at its principal office
exercising the Conversion Right and specifying (i) the total number of shares
Holder will purchase pursuant to such conversion and (ii) a place and date not
less than one nor more than 30 days from the date of the Conversion Notice to
the closing of such purchase.
SECTION 6 ANTI-DILUTION ADJUSTMENTS
6.1 Adjustment of Exercise Price and Number of Shares. In order to prevent
dilution of the rights granted under this Warrant, the purchase price of each
share of Common Stock pursuant to this Warrant Agreement (the "Exercise Price")
shall be subject to adjustment from time to time as provided in this Section 6,
and the number of shares obtainable upon exercise of this Warrant Agreement
shall be subject to adjustment from time to time as provided in this Section 6.
6.2 Subdivision or Combination of Shares. If Castle Brands at any time
subdivides (by any stock split, stock dividend, recapitalization or otherwise)
its outstanding shares of Common Stock into a greater number of shares, the
Exercise Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of shares of Common Stock obtainable upon
exercise of this Warrant shall be proportionately increased. If Castle Brands at
any time combines (by reverse stock split or otherwise) its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and the
number of shares of Common Stock obtainable upon exercise of this Warrant shall
be proportionately decreased.
6.3 Reorganization, Reclassification, Consolidation, Merger or Sale. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of Castle Brands' assets or other transaction, which
in each case is effected in such a way that the holders of shares are entitled
to receive (either directly or upon subsequent liquidation) stock, securities or
assets with respect to or in exchange for shares of Common Stock is referred to
herein as an "Organic Change". Prior to the consummation of any Organic Change,
Castle Brands shall make appropriate provision (in form and substance
satisfactory to Holder) to insure that Holder shall thereafter have the right to
acquire and receive, in lieu of or in addition to (as the case may be) the
shares of Common Stock immediately theretofore acquirable and receivable upon
the exercise of this Warrant Agreement, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant Agreement had such Organic Change not taken place. In
any such case, Castle Brands shall make appropriate provision (in form and
substance satisfactory to Holder) with respect to Holder's rights and interests
to insure that the provisions of this Section 6 shall thereafter be applicable
to this
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Warrant Agreement (including, in the case of any such consolidation, merger or
sale in which the successor entity or purchasing entity is other than Castle
Brands, an immediate adjustment of the Exercise Price to the value for the
shares reflected by the terms of such consolidation, merger or sale, and a
corresponding immediate adjustment in the number of shares of Common Stock
acquirable and receivable upon exercise of this Warrant Agreement, if the value
so reflected is less than the Exercise Price in effect immediately prior to such
consolidation, merger or sale). Castle Brands shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the
successor entity (if other than Castle Brands) resulting from consolidation or
merger or the entity purchasing such assets assumes by written instrument (in
form and substance satisfactory to Holder), the obligation to deliver to each
such holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to acquire.
6.4 Certain Events. If any event occurs of the type contemplated by the
provisions of this Section 6 but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation rights,
phantom stock rights or other rights with equity features), then Castle Brands'
Board of Directors shall make an appropriate adjustment in the Exercise Price
and the number of shares of Common Stock obtainable upon exercise of this
Warrant so as to protect the rights of Holder; provided that no such adjustment
shall increase the Exercise Price or decrease the number of shares of Common
Stock obtainable as otherwise determined pursuant to this Section 6.
6.5 Notices.
(i) Immediately upon any adjustment of the Exercise Price, Castle Brands
shall give written notice thereof to Holder, setting forth in reasonable detail
and certifying the calculation of such adjustment.
(ii) Castle Brands shall give written notice to Holder at least 20 days
prior to the date on which Castle Brands closes its books or takes a record (A)
with respect to any dividend or distribution upon the shares of Common Stock,
(B) with respect to any pro rata subscription offer to holders of shares of
Common Stock or (C) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) Castle Brands shall also give written notice to Holders at least 20
days prior to the date on which any Organic Change, dissolution or liquidation
shall take place.
SECTION 7 LIMITED REGISTRATION RIGHTS
7.1 Limited Registration Rights.
7.1.1 None of this Warrant Agreement, the Purchased Shares or the
Underlying Shares have been registered under the securities laws of any
jurisdiction.
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7.1.2 Except as specifically provided for in Section 7.1.3 of this
Warrant Agreement, Castle Brands is not obligated to register either the Warrant
Agreement, the Purchased Shares or the Underlying Shares.
7.1.3 While this Warrant Agreement is in effect and for the ten (10)
year period ending after the exercise of this Warrant Agreement, if after Castle
Brands has completed an initial public offering of securities with gross
proceeds exceeding $15 million, Castle Brands elects to file a registration
statement under the Securities Act covering any of its Common Stock, whether or
not for sale for its own account, other than (x) a registration relating solely
to employee benefit plans, or (y) a registration relating solely to a Commission
Rule 145 transaction, Castle Brands will give prompt written notice to Holder of
its intent to do so, and if Holder so requests, Holder will be allowed to have
the Purchased Shares or Underlying Shares registered to the extent then
permissible under the applicable securities laws and, if so requested, to have
those shares included in any public offering and distributed by the underwriters
along with the shares of Common Stock being offered and sold by Castle Brands
subject to any customary limitations or cutbacks as may be imposed by the
underwriter and other registration rights then in existence.
7.1.4 In the event that on either June 1, 2007 or June 1, 2008
(each, a "Registration Deadline Date") (a) there are Purchased Shares or
Underlying Shares that have not been registered ("Unregistered Warrant Shares")
and (b) Castle Brands has not filed a registration statement whereby Keltic had
the opportunity to register such Unregistered Warrant Shares prior to the
applicable Registration Deadline Date, Castle Brands shall pay Keltic
U.S.$100,000 within ten days of such Registration Deadline Date.
7.2 Expenses of Registration.
All registration and other related expenses incurred in connection with
any registration pursuant to this Section 7, and the reasonable cost of one
special legal counsel to represent all Holders, shall be borne by Castle Brands,
except for Holder's share of underwriter's fees, if any.
7.3 Indemnification.
7.3.1 Indemnification by Castle Brands. To the extent permitted by
law, Castle Brands will indemnify Holder within the meaning of the Securities
Act, with respect to which registration, qualification or compliance has been
effected pursuant to this Section 7 against losses, claims, damages,
liabilities, investigations, actions, proceedings and expenses caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement, prospectus or preliminary or summary prospectus, or any
amendment thereof or supplement thereto, or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and Castle Brands will reimburse Holder for any legal and
other expenses reasonably incurred by Holder in connection with investigating or
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defending any such loss, claim, liability, investigation, action or proceeding
except insofar as the same was made in reliance upon and in conformity with
written information furnished to Castle Brands by an instrument duly executed by
Holder expressly stated for use therein ("Holder's Information") or such
liability arises out of or is based on willful misconduct of Holder.
7.3.2 Indemnification by Holder. To the extent permitted by law, in
connection with each registration relating to the disposition of the Purchased
Shares or Underlying Shares by Holder pursuant to Section 7, Holder will
indemnify Castle Brands, each of its directors, officers, agents, and any person
who controls Castle Brands (within the meaning of the Securities Act) against
all losses, claims, damages, liabilities, investigations, actions, proceedings
and expenses described in Section 7.3.1 above, but only with respect to untrue
statements or omissions made in the registration statement, any preliminary or
summary prospectus or the prospectus or any amendment or supplement thereto in
reliance upon and in conformity with Holder's Information; provided, however,
that the liability of Holder for indemnification under this Section 7.3.2 shall
not exceed the gross proceeds from the offering received by Holder, unless such
liability arises out of or is based on willful misconduct of Holder.
7.3.3 Claims for Indemnification. Each party entitled to
indemnification under this Section 7 (the "Indemnified Party") shall give
written notice to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought and shall unless in the
Indemnified Party's reasonable judgment a conflict of interest may exist between
the Indemnified Party and the Indemnifying Party in respect of such claim,
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (which approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 7 except to the extent that the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
7.3.4 Survival of Indemnification. The indemnification provided for
under this Section 7 will remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party. The obligations of
Castle Brands and Holder under this Section 7 shall survive the completion of
any offering of registrable securities in a registration statement pursuant to
this Warrant Agreement. The parties agree to make such provisions for
contribution as are reasonably requested by the other party hereto, in the event
indemnification is unavailable for any reason.
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7.4 Information by Holder; Copies of Prospectus. Holder shall furnish to
Castle Brands such information regarding itself, the registrable securities held
by it and the distribution proposed by it as Castle Brands may reasonably
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 7. In connection with
any such registration, Castle Brands shall furnish to Holder the registration
statement and each amendment and supplement thereto and such other documents as
Holder may reasonably request, and such numbers of copies as it may reasonably
request, in order to facilitate the disposition of registrable securities owned
by it, of any prospectus or preliminary or summary prospectus prepared in
conformity with the Securities Act.
7.5 Obligations of Castle Brands. Whenever required under this Section 7
to effect the registration of any Purchased Shares or Underlying Shares pursuant
to Section 7.1.3, Castle Brands shall, as soon as practicable:
7.5.1 Prepare and file with the Commission a registration statement
with respect to such securities and use its reasonable efforts to cause such
registration statement to become effective and remain effective for at least 120
days.
7.5.2 Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to keep such registration
statement effective for at least 120 days, and to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such registration statement.
7.5.3 Use its reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions where an exemption is not available as shall
be reasonably requested by Holder, to keep such registration or qualification in
effect for so long as such registration statement remains in effect, provided
that Castle Brands shall not be required in connection therewith or as a
condition thereto to file a general consent to service of process in any such
states or jurisdictions.
7.5.4 Notify Holder at any time when a prospectus relating thereto
is required to be delivered under the Securities Act upon discovery that or upon
the happening of any event as a result of which the prospectus included in such
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 the light of the
circumstances then existing, and at the reasonable request of Holder furnish to
Holder a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances in which they were made.
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7.5.5 Furnish, at the request of Holder, on the date that such
securities are delivered to the underwriters for sale in connection with a
registration pursuant to this Warrant Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion dated such date of the counsel
representing Castle Brands for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to Holder and (ii) a letter
dated such date from the independent certified public accountants of Castle
Brands in form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and to
Holder. Any opinion or letter given shall be subject to all of the
qualifications, exceptions and conditions appropriate to the then existing
circumstances.
7.5.6 Use its reasonable efforts to cause all registered shares to
be listed on each securities exchange on which Castle Brands Common Stock is
then listed.
7.6 Removal of Legend. After registration of the Purchased Shares and upon
the reasonable request of Holder and at Castle Brands' expense, Castle Brands
shall take such reasonable actions as are necessary to remove the legends and
restrictions on transfer established in this Warrant Agreement.
7.7 Lock-up Agreement. Keltic hereby agrees to execute and deliver the
lock-up agreement attached hereto as Exhibit A (the "Lock-up Agreement")
simultaneously with execution and delivery of this Warrant Agreement. All of
Keltic's rights under this Warrant Agreement are subject to the provisions of
the Lock-Up Agreement.
SECTION 8 TAX WITHHOLDING
If, in connection with the exercise of this Warrant Agreement or any sale,
transfer or other disposition of any of the Purchased Shares acquired upon
exercise of this Warrant Agreement, Castle Brands is required by applicable
federal, state or local law to withhold any amount on account of employment,
income or similar taxes, Holder agrees to pay to Castle Brands upon request the
amount required to be withheld.
SECTION 9 MISCELLANEOUS
9.1 Transfer; Successors and Assigns. Except as the transferability of
rights is expressly limited herein, the terms and conditions of this Warrant
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Warrant Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Warrant Agreement, except
as expressly provided in this Warrant Agreement.
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9.2 Titles and Subtitles. The titles and subtitles used in this Warrant
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Warrant Agreement.
9.3 Notices. All notices, requests, demands or other communications
required or permitted to be given under this Warrant Agreement shall be in
writing, delivered to or sent by fax, or postage prepaid certified mail,
addressed (a) if to Holder, at such address as such Holder shall have furnished
to Castle Brands in writing, or (b) if to Castle Brands, at such address as
Castle Brands shall have furnished in writing to Holder to the attention of the
President. Any notice or other communication shall be deemed to be given at the
expiration of the fifth day after the date of deposit in the United States mail.
The addresses to which notices or other communications shall be mailed may be
changed from time to time by giving written notice to the other party as
provided in this Section 9.3.
9.4 Severability. If any provision of this Warrant Agreement shall be
invalid or unenforceable in any respect for any reason, the validity and
enforceability of any such provision in any other respect and of the remaining
provisions of this Warrant Agreement shall not be in any way impaired.
9.5 Attorneys Fees. If any suit or action is filed by any party to enforce
this Warrant Agreement or otherwise with respect to the subject matter of this
Warrant Agreement, the prevailing party shall be entitled to recover reasonable
attorneys fees incurred in preparation or in prosecution or defense of such suit
or action as fixed by the court or courts in which the suit or action, including
any appeal therein, is tried, heard or decided. Attorneys fees shall include
fees of paralegals and deposition expenses, and shall further include attorneys
fees incurred by any party in connection with any bankruptcy or similar
proceeding.
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9.6 Governing Law and Venue. This Warrant Agreement shall be governed by
and construed in accordance with the laws of the State of New York. If any suit
or action is filed by any party to enforce this Warrant Agreement or otherwise
with respect to the subject matter of this Warrant Agreement, venue shall be in
the federal or state courts in New York, New York, unless venue there would
prevent the joining of appropriate third parties.
IN WITNESS WHEREOF, the parties have executed this Warrant Agreement as of
the date first above written.
CASTLE BRANDS INC.
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx
President and Chief Executive Officer
KELTIC FINANCIAL PARTNERS, LP
a Delaware limited partnership
By: Keltic Financial Services LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Partner
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EXHIBIT A
KELTIC FINANCIAL PARTNERS LP
000 XXXXXXXX XXXXX XXXXXX, XXXXX X-000
XXX, XXX XXXX 00000
September 27, 2005
Xxxxxxxxxxx & Co. Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Ladies and Gentlemen:
The undersigned understands that Xxxxxxxxxxx & Co. Inc. ("Oppenheimer"),
ThinkEquity Partners LLC ("ThinkEquity"), Ladenburg Xxxxxxx & Co. Inc.
("Ladenburg") and perhaps certain other underwriters severally propose to enter
into an Underwriting Agreement (the "Underwriting Agreement") with Castle Brands
Inc., a Delaware corporation (the "Company"), providing for the public offering
(the "Public Offering") by the several Underwriters, including Xxxxxxxxxxx,
ThinkEquity and Ladenburg (the "Underwriters"), of $2,500,000 shares (the
"Shares") of the common stock, par value $0.01 per share, of the Company (the
"Common Stock").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxxxxxxx on behalf
of the Underwriters, it will not, during the period commencing on the date
hereof and ending 180 days after the date of the final prospectus relating to
the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transactions relating
to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering, (b) the exercise of
any stock option, warrant or other right to acquire shares of Common Stock, the
conversion of a security convertible into Common Stock, or any disposition of
shares of Common Stock, (i) in lieu of payment of the exercise or conversion
price thereof or (ii) to the Company to satisfy any withholding tax obligation
in connection with such exercise or conversion; (c) transfers by the undersigned
to any member of the immediate family of the undersigned, to any trust for the
direct or indirect benefit of the undersigned or as bona fide gifts; provided
that, in each case, each transferee and the trustee of any such trust, as
applicable, agrees to be bound in writing to the restrictions set forth in this
Lock-Up Agreement; or (d) if the undersigned is an individual, the transfer of
any shares as a result of testate or intestate succession, or in the event that
the undersigned becomes permanently disabled, provided that, in each case, each
transferee agrees to be bound in writing to the restrictions set forth in this
Lock-Up Agreement. In addition, the undersigned agrees that, without the prior
written consent of Xxxxxxxxxxx on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 180 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock. The undersigned also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the undersigned's
shares of Common Stock except in compliance with the foregoing restrictions.
This Lock-Up Agreement shall remain in full force regardless of any delay in the
Public Offering, any increase or reduction in the size of, or other change in,
the Public Offering; provided, however, that, notwithstanding any other
provision contained herein, this Lock-Up Agreement, including the provisions of
this paragraph, shall be automatically terminated and shall cease to be of any
force and effect if (i) the Company and the Underwriters have not entered into
the Underwriting Agreement on or before March 31, 2006 or (ii) any holder of
25,000 or more shares of Common Stock (subject to adjustment to reflect any
stock split, stock dividend, combination, recapitalization, reorganization or
other adjustment of the Common Stock) is released from their lock-up agreement.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
KELTIC FINANCIAL PARTNERS LP
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Partner
Print address:
555 Xxxxxxxx Xxxxx Xxxxxx X000
Xxx, Xxx Xxxx 00000
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