WARRANT AGREEMENT
EXHIBIT
4.7
Agreement made as of _______________,
2010 between CELSIUS HOLDINGS, INC., a Nevada corporation, with offices at 000
XX 0xx Xxxxxx, Xxxxx X, Xxxxxx Xxxxx, XX 00000 (“Company”), and
INTERWEST TRANSFER COMPANY, INC., a _________ corporation, with offices at 0000
Xxxx Xxxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 (“Warrant
Agent”).
WHEREAS, the Company is engaged in a
public offering (“Public Offering”) of units, each unit comprised of four shares
of Common Stock (as defined below) and one Warrant (as defined below) (the
“Units”) and, in connection therewith, has determined to issue and deliver (i)
up to 1,035,000 Warrants (“Public Warrants”) to the public investors (including
those Warrants covered by the over-allotment option) and (ii) up to 18,000
Warrants (“Underwriters’ Warrants”) to the underwriters of the Public Offering
upon exercise of the purchase option granted to the underwriters pursuant to the
underwriting agreement relating to the Public Offering (the Public Warrants and
the Underwriters’ Warrants, together, the “Warrants”), each of such Warrants
evidencing the right of the holder thereof to purchase one share of Common Stock
of the Company, par value $.001 per share (“Common Stock”), for $_______ ,
subject to adjustment as described herein; and
WHEREAS, the Company has filed with the
Securities and Exchange Commission a Registration Statement on Form S-1, No.
333-163207 (“Registration Statement”), for the registration, under the
Securities Act of 1933, as amended (“Act”) of, among other securities, the
Warrants and the shares of Common Stock issuable upon exercise of the Warrants;
and
WHEREAS, the Company desires the
Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing
to so act, in connection with the issuance, registration, transfer, exchange and
exercise of the Warrants; and
WHEREAS, the Company desires to provide
for the form and provisions of the Warrants, the terms upon which they shall be
issued and exercised, and the respective rights, limitation of rights, and
immunities of the Company, the Warrant Agent, and the holders of the Warrants;
and
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WHEREAS, all acts and things have been
done and performed which are necessary to make the Warrants, when executed on
behalf of the Company and countersigned by or on behalf of the Warrant Agent, as
provided herein, the valid, binding and legal obligations of the Company, and to
authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the
mutual agreements herein contained, the parties hereto agree as
follows:
1. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as
agent for the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. Warrants.
2.1. Form of
Warrant. Each Warrant shall be issued in registered form only,
shall be in substantially the form of Exhibit A hereto, the provisions of which
are incorporated herein and shall be signed by, or bear the facsimile signature
of, the Chairman of the Board or President and Treasurer, Secretary or Assistant
Secretary of the Company and shall bear a facsimile of the Company’s seal. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as
if he or she had not ceased to be such at the date of issuance.
2.2. Effect of
Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect and may not be exercised by the holder thereof.
2.3. Registration.
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2.3.1. Warrant
Register. The Warrant Agent shall maintain books (“Warrant
Register”), for the registration of original issuance and the registration of
transfer of the Warrants. Upon the initial issuance of the Warrants,
the Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof in such denominations and otherwise in accordance
with instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered
Holder. Prior to due presentment for registration of transfer
of any Warrant, the Company and the Warrant Agent may deem and treat the person
in whose name such Warrant shall be registered upon the Warrant Register
(“registered holder”) as the absolute owner of such Warrant and of each Warrant
represented thereby (notwithstanding any notation of ownership or other writing
on the Warrant Certificate made by anyone other than the Company or the Warrant
Agent), for the purpose of any exercise thereof, and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.4. Detachability of
Warrants. The securities comprising the Units, including the
Warrants, will be issued separately and will be separately transferable
immediately upon issuance.
2.5 Warrant
Attributes. The Underwriters’ Warrants shall have the same
terms and be in the same form as the Public Warrants.
2.6 Uncertificated
Warrants. Notwithstanding the foregoing and anything else
herein to the contrary, the Warrants may be issued in book-entry or
uncertificated form.
3. Terms and Exercise of
Warrants
3.1. Warrant
Price. Each Warrant shall, when countersigned by the Warrant
Agent, entitle the registered holder thereof, subject to the provisions of such
Warrant and of this Warrant Agreement, to purchase from the Company the number
of shares of Common Stock stated therein, at the price of $_____________ per
whole share, subject to the adjustments provided in Section 4 hereof and in the
last sentence of this Section 3.1. The term “Warrant Price” as used
in this Warrant Agreement refers to the price per share at which shares of
Common Stock may be purchased at the time a Warrant is exercised. The
Company in its sole discretion may lower the Warrant Price at any time prior to
the Expiration Date for a period of not less than twenty business days, provided
that any such reduction shall be identical among all of the
Warrants.
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3.2. Duration of
Warrants. A Warrant may be exercised only during the period
(“Exercise Period”) commencing on __________, 2010 and terminating at 5:00 p.m.,
[Salt Lake City] time on
__________, 2013 (“Expiration Date”). Each Warrant not exercised on
or before the Expiration Date shall become void, and all rights thereunder and
all rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date; provided that if a Warrant holder surrenders a
Warrant for exercise in accordance with Section 3.3 prior to the Expiration Date
and the Registration Condition (as defined below) is not satisfied at such time
with respect to one or both of Cash Exercise and Cashless Exercise (each as
defined below), such Warrant may be exercised until the later of __________,
2013 and the tenth business day following the day the Registration Condition is
first satisfied with respect to one or both of Cash Exercise and Cashless
Exercise. The Company in its sole discretion may extend the duration
of the Warrants by delaying the Expiration Date; provided, however, the Company
will provide notice to registered holders of the Warrants of such extension of
not less than 20 days and, further provided that any such extension shall be
identical in duration among all of the Warrants.
3.3. Exercise of
Warrants.
3.3.1. Payment. Subject
to the provisions of the Warrant and this Warrant Agreement, a
Warrant, when countersigned by the Warrant Agent, may be exercised by the
registered holder thereof by surrendering it, at the office of the Warrant
Agent, or at the office of its successor as Warrant Agent, in Salt Lake City,
State of Utah, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full the Warrant Price for each full share of Common
Stock as to which the Warrant is exercised and any and all applicable taxes due
in connection with the exercise of the Warrant, the exchange of the Warrant for
the shares of Common Stock and the issuance of such shares of Common Stock, as
follows:
(a) in
lawful money of the United States, in cash, good certified check or good bank
draft payable to the order of the Company (“Cash Exercise”); or
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(b) if
a registration statement, or an exemption from registration, under the Act is
not available for the resale of the shares of Common Stock underlying the
Warrant and the “Fair Market Value” (as defined below) is greater than the
Warrant Price, by surrendering the Warrant for that number of shares of Common
Stock equal to the quotient obtained by dividing (x) the product of the number
of shares of Common Stock as to which the Warrant is exercised multiplied by the
difference between the Warrant Price and the Fair Market Value by (y) the Fair
Market Value (“Cashless Exercise”). Solely for purposes of this Section
3.3.1(b), the “Fair Market Value” shall mean the arithmetic average of closing
sale price of the Common Stock for the five (5) trading days ending on the
trading day immediately prior to the date of exercise.
3.3.2. Issuance of
Certificates. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant Price (if cash
is paid), the Company shall issue to the registered holder of such Warrant a
certificate or certificates for the number of full shares of Common Stock to
which he is entitled, registered in such name or names as may be directed by
him, her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall
not have been exercised. Notwithstanding the foregoing, the Company
shall not be obligated to deliver any securities pursuant to the exercise of a
Warrant and shall have no obligation to settle such Warrant exercise
unless: (i) a registration statement under the Act with respect to
the shares of Common Stock is effective, subject to the Company’s satisfying its
obligations under Section 7.4 or (ii) in the opinion of counsel to the Company,
the exercise of the Warrants is exempt from the registration requirements of the
Act and such securities are qualified for sale or exempt from qualification
under applicable securities laws of the states or other jurisdictions in which
the registered holders reside (“Registration Condition”). In the event the
Registration Condition is not satisfied for one or both of Cash Exercise and
Cashless Exercise, the holder of such Warrant shall not be entitled to exercise
such Warrant and such Warrant may have no value. In no event will the Company be
required to net cash settle the Warrant exercise. Warrants may not be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful.
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3.3.3. Valid
Issuance. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be validly issued,
fully paid and nonassessable.
3.3.4. Date of
Issuance. Each person in whose name any such certificate for
shares of Common Stock is issued shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price was made, irrespective of the date
of delivery of such certificate, except that, if the date of such surrender and
payment is a date when the share transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the share transfer books are
open.
3.3.5. Limitations on
Exercise. Notwithstanding anything to the contrary contained
herein, the number of shares of Common Stock that may be acquired by the
registered holder upon any exercise of Warrants (or otherwise in respect hereof)
shall be limited to the extent necessary to insure that, following such exercise
(or other issuance), the total number of shares of Common Stock then
beneficially owned by such holder and its Affiliates and any other Persons whose
beneficial ownership of Common Stock would be aggregated with the holder's for
purposes of Section 13(d) of the Exchange Act, does not exceed 9.999% of the
total number of issued and outstanding shares of Common Stock (including for
such purpose the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
This provision shall not restrict the number of shares of Common Stock which a
registered holder may receive or beneficially own in order to determine the
amount of securities or other consideration that such holder may receive in the
event of a transaction contemplated by Section 4 of this Warrant
Agreement. This restriction may not be waived.
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4. Adjustments.
4.1. Stock Dividends - Split
Ups. If after the date hereof, and subject to the provisions
of Section 4.6 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 Common Stock, or other similar event, then, on the effective date of such
stock dividend, split up or similar event, the number of shares of Common Stock
issuable on exercise of each Warrant shall be increased in proportion to such
increase in outstanding shares of Common Stock.
4.2. Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section 4.6, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination, reverse stock split or
reclassification of Common Stock or other similar event, then, on the effective
date of such consolidation, combination, reverse stock split, reclassification
or similar event, the number of shares of Common Stock issuable on exercise of
each Warrant shall be decreased in proportion to such decrease in outstanding
shares of Common Stock.
4.3 Adjustments in Exercise
Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants is adjusted, as provided in
Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest
cent) by multiplying such Warrant Price immediately prior to such adjustment by
a fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares of
Common Stock so purchasable immediately thereafter.
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4.4. 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 4.1 or 4.2 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 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 assets or other property of the Company as an entirety or
substantially as an entirety (each a “Fundamental Transaction”), it shall be a
condition to such Fundamental Transaction that the Company or any successor to
the Company in the Fundamental Transaction deliver in exchange for each
outstanding Warrant a written instrument substantially similar to the Warrant
entitling the Warrant holders to purchase, in lieu of the shares of Common Stock
of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented thereby, (i) if the common stock of the
Company or any successor to the Company in the Fundamental Transaction
(“Successor”) is traded on a national securities exchange (as defined in the
Act) after the Fundamental Transaction, the common stock of the Company or any
Successor at an exercise price equitably adjusted to reflect the terms of the
Fundamental Transaction or (ii) if the common stock of the Company or any
Successor is not so traded, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such Fundamental
Transaction, that the Warrant holder would have received if such Warrant holder
had exercised his, her or its Warrant(s) immediately prior to such event; and if
any reclassification also results in a change in Common Stock covered by Section
4.1 or 4.2, then such adjustment shall be made pursuant to Sections 4.1, 4.2,
4.3 and this Section 4.4. The provisions of this Section 4.4 shall
similarly apply to successive Fundamental Transactions.
4.5. Notices of Changes in
Warrant. Upon every adjustment of the Warrant Price or the
number of shares issuable upon exercise of a Warrant, the Company shall give
written notice thereof to the Warrant Agent, which notice shall state the
Warrant Price resulting from such adjustment and the increase or decrease, if
any, in the number of shares purchasable at such price upon the exercise of a
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Upon the occurrence of
any event specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event,
the Company shall give written notice to each Warrant holder, at the last
address set forth for such holder in the warrant register, of the record date or
the effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such
event.
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4.6. No Fractional
Shares. Notwithstanding any provision contained in this
Warrant Agreement to the contrary, the Company shall not issue fractional shares
upon exercise of Warrants. If, by reason of any adjustment made
pursuant to this Section 4, the holder of any Warrant would be entitled, upon
the exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round up or down to the nearest whole number
the number of the shares of Common Stock to be issued to the Warrant
holder.
4.7. Form of
Warrant. The form of Warrant need not be changed because of
any adjustment pursuant to this Section 4 (other than Section 4.4), and Warrants
issued after such adjustment may state the same Warrant Price and the same
number of shares as is stated in the Warrants initially issued pursuant to this
Agreement. However, the Company may at any time in its sole
discretion make any change in the form of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer and Exchange of
Warrants.
5.1. Registration of
Transfer. The Warrant Agent shall register the transfer, from
time to time, of any outstanding Warrant upon the Warrant Register, upon
surrender of such Warrant for transfer, properly endorsed with signatures
properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be
cancelled by the Warrant Agent. The Warrants so cancelled shall be
delivered by the Warrant Agent to the Company from time to time upon
request.
5.2. Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and thereupon the
Warrant Agent shall issue in exchange therefor one or more new Warrants as
requested by the registered holder of the Warrants so surrendered, representing
an equal aggregate number of Warrants; provided, however, that in the event that
a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent
shall not cancel such Warrant and issue new Warrants in exchange therefor until
the Warrant Agent has received an opinion of counsel for the Company stating
that such transfer may be made and indicating whether the new Warrants must also
bear a restrictive legend.
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5.3. Fractional
Warrants. The Warrant Agent shall not be required to effect
any registration of transfer or exchange which will result in the issuance of a
warrant certificate for a fraction of a warrant.
5.4. Service
Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5. Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this Agreement, the
Warrants required to be issued pursuant to the provisions of this Section 5, and
the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such
purpose.
6. [Reserved.]
7. Other Provisions Relating to
Rights of Holders of Warrants.
7.1. No Rights as
Shareholder. A Warrant does not entitle the registered holder
thereof to any of the rights of a shareholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as shareholders in
respect of the meetings of shareholders or the election of directors of the
Company or any other matter.
7.2. Lost, Stolen, Mutilated, or
Destroyed Warrants. If any Warrant is lost, stolen, mutilated,
or destroyed, the Company and the Warrant Agent may on such terms as to
indemnity or otherwise as they may in their discretion impose (which shall, in
the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a
substitute contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable
by anyone.
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7.3. Reservation of Shares of
Common Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that
will be sufficient to permit the exercise in full of all outstanding Warrants
issued pursuant to this Agreement.
7.4. Registration of Shares of
Common Stock. The Company agrees that it shall, as necessary,
use its best efforts to file with the Securities and Exchange Commission a
post-effective amendment to the Registration Statement, or a new registration
statement, for the registration, under the Act, of the shares of Common Stock
issuable upon exercise of the Warrants, and it shall use its best efforts to
take such action as is necessary to qualify for sale, in those states in which
the Warrants were initially offered by the Company, the shares of Common Stock
issuable upon exercise of the Warrants. In either case, the Company
will use its best efforts to cause the same to become effective and to maintain
the effectiveness of such registration statement until the expiration of the
Warrants in accordance with the provisions of this Agreement. In
addition, the Company agrees to use its best efforts to register such securities
under the blue sky laws of the states of residence of the exercising warrant
holders to the extent an exemption is not available. The provisions
of this Section 7.4 may not be modified, amended or deleted without the prior
written consent of Ladenburg Xxxxxxxx & Co. Inc., the representative of the
underwriters of the Public Offering.
8. Concerning the Warrant Agent
and Other Matters.
8.1. Payment of
Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in
respect of the issuance or delivery of shares of Common Stock upon the exercise
of Warrants, but the Company shall not be obligated to pay any transfer taxes in
respect of the Warrants or such shares.
8.2. Resignation, Consolidation,
or Merger of Warrant Agent.
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8.2.1. Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it
hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing
to the Company. If the office of the Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after
it has been notified in writing of such resignation or incapacity by the Warrant
Agent or by the holder of the Warrant (who shall, with such notice, submit his
Warrant for inspection by the Company), then the holder of any Warrant may apply
to the Supreme Court of the State of New York for the County of New York for the
appointment of a successor Warrant Agent at the Company’s cost. Any
successor Warrant Agent, whether appointed by the Company or by such court,
shall be a corporation organized and existing under the laws of either the State
of Utah, Florida or New York, in good standing and having its principal office
in either Salt Lake City, State of Utah, Miami, State of Florida or New York,
State of New York, as selected by the holder of the Warrants making application
to the Court and authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by federal or state
authority. After appointment, any successor Warrant Agent shall be
vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant
Agent. In the event a successor Warrant Agent shall be
appointed, the Company shall give notice thereof to the predecessor Warrant
Agent and the transfer agent for the Common Stock not later than the effective
date of any such appointment.
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8.2.3. Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant Agent
may be merged or with which it may be consolidated or any corporation resulting
from any merger or consolidation to which the Warrant Agent shall be a party
shall be the successor Warrant Agent under this Agreement without any further
act.
8.3. Fees and Expenses of Warrant
Agent.
8.3.1. Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2. Further
Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
8.4. Liability of Warrant
Agent.
8.4.1. Reliance on Company
Statement. Whenever in the performance of its duties under
this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to taking
or suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the Chief Executive
Officer, President or Chairman of the Board of the Company and delivered to the
Warrant Agent. The Warrant Agent may rely upon such statement for any
action taken or suffered in good faith by it pursuant to the provisions of this
Agreement.
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8.4.2. Indemnity. The
Warrant Agent shall be liable hereunder only for its own gross negligence,
willful misconduct or bad faith. The Company agrees to indemnify the
Warrant Agent and save it harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees, for anything done or omitted by
the Warrant Agent in the execution of this Agreement except as a result of the
Warrant Agent’s gross negligence, willful misconduct, or bad faith.
8.4.3. Exclusions. The
Warrant Agent shall have no responsibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant or
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.
8.5. Acceptance of
Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and among other things, shall account promptly to
the Company with respect to Warrants exercised and concurrently account for, and
pay to the Company, all moneys received by the Warrant Agent for the purchase of
shares of Common Stock through the exercise of Warrants.
9. Miscellaneous
Provisions.
9.1. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
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9.2. Notices. Any
notice, statement or demand authorized by this Warrant Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
000 XX
0xx Xxxxxx, Xxxxx X
Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: CEO
and CFO
Any
notice, statement or demand authorized by this Agreement to be given or made by
the holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Interwest
Transfer Company, Inc.
0000 Xxxx
Xxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx
Xxxx, Xxxx 00000
Attn: Warrant
Department
with a
copy in each case to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxx Xxxxxx, Esq.
and
Xxxxxxxx
& Xxxx LLP
000 Xxxx
Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx
X. Xxxxxxx, Esq.
and
Ladenburg
Xxxxxxxx & Co. Inc.
0000
Xxxxxxxx Xxxx, 00xx Xxxxx
Xxxxx,
Xxxxxxx 00000
Attn: Xxxxxx
Xxxxxx, Managing Director
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9.3. Applicable
Law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws of
the State of [_______], without giving effect to conflicts of law principles
that would result in the application of the substantive laws of another
jurisdiction. The Company hereby agrees that any action, proceeding
or claim against it arising out of or relating in any way to this Agreement
shall be brought and enforced in the courts of the State of [_______] or the
United States District Court for the [district], and irrevocably
submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience
forum. Any such process or summons to be served upon the Company may
be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.2 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or
claim.
9.4. Persons Having Rights under
this Agreement. Nothing in this Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the parties hereto and the registered holders of the Warrants and, for the
purposes of Sections 7.4 and 9.2 hereof, Ladenburg Xxxxxxxx & Co. Inc., any
right, remedy, or claim under or by reason of this Warrant Agreement or of any
covenant, condition, stipulation, promise, or agreement
hereof. Ladenburg Xxxxxxxx & Co. Inc. shall be deemed to be a
third-party beneficiary of this Agreement with respect to Sections 7.4 and 9.2
hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto (and Ladenburg Xxxxxxxx & Co. Inc.
with respect to the Sections 7.4 and 9.2 hereof) and their successors and
assigns and of the registered holders of the Warrants.
9.5. Examination of the Warrant
Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent for inspection by the
registered holder of any Warrant. The Warrant Agent may require any
such holder to submit his Warrant for inspection by it.
16
9.6. Counterparts. This
Agreement may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
9.7. Effect of
Headings. The Section headings herein are for convenience only
and are not part of this Warrant Agreement and shall not affect the
interpretation thereof.
9.8 Amendments. This
Agreement may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any
amendment to increase the Warrant Price or shorten the Exercise Period, shall
require the written consent of the registered holders of a majority of the then
outstanding Warrants. Notwithstanding the foregoing, the Company may
lower the Warrant Price or extend the duration of the Exercise Period pursuant
to Sections 3.1 and 3.2, respectively, without the consent of the registered
holders.
9.9 Severability. This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
17
IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties hereto as of the day and year first above
written.\
By:
Name:
Title:
INTERWEST
TRANSFER COMPANY, INC.
By:
Name:
Title:
18
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NUMBER
________-W
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(SEE
REVERSE SIDE FOR LEGEND)
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 P.M. SALT LAKE CITY
TIME, __________, 2013
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WARRANTS
|
CUSIP __________
WARRANT
THIS
CERTIFIES THAT, for value received
is the
registered holder of a Warrant or Warrants expiring ________, 2013 (the
“Warrant”) to purchase one fully paid and non-assessable share of Common Stock,
par value $0.001 per share (“Share(s)”), of Celsius Holdings, Inc., a Nevada
corporation (the “Company”), for each Warrant evidenced by this Warrant
Certificate. The Warrant entitles the holder thereof to purchase from
the Company, commencing on _______, 2010, such number of Shares of the Company
at the price of $_____ per share, upon surrender of this Warrant Certificate and
payment of the Warrant Price at the office or agency of the Warrant Agent,
Interwest Transfer Company, Inc., but only subject to the conditions set forth
herein and in the Warrant Agreement between the Company and Interwest Transfer
Company, Inc. The Company shall not be obligated to deliver any
securities pursuant to the exercise of a Warrant and shall have no obligation to
settle a Warrant exercise unless a registration statement under the Securities
Act of 1933, as amended, (the “Act”) with respect to the Shares is effective or,
in the opinion of counsel to the Company, the exercise of the Warrants is exempt
from the registration requirements of the Act and such securities are qualified
for sale or exempt from qualification under applicable securities laws of the
states or other jurisdictions in which the registered holders reside
(“Registration Condition”), subject to the Company satisfying its obligations
under Section 7.4 of the Warrant Agreement to use its best efforts. In the event
that the Registration Condition is not satisfied for one or both of cash and
cashless exercise, the holder of such Warrant shall not be entitled to exercise
such Warrant and such Warrant may have no value. In no event will the Company be
required to net cash settle the warrant exercise. The Warrant Agreement provides
that upon the occurrence of certain events the Warrant Price and the number of
Warrant Shares purchasable hereunder, set forth on the face hereof, may, subject
to certain conditions, be adjusted. The term Warrant Price as
used in this Warrant Certificate refers to the price per Share at which Shares
may be purchased at the time the Warrant is exercised.
No
fraction of a Share will be issued upon any exercise of a Warrant. If
the holder of a Warrant would be entitled to receive a fraction of a Share upon
any exercise of a Warrant, the Company shall, upon such exercise, round up or
down to the nearest whole number the number of Shares to be issued to such
holder.
Upon any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or the
registered holder’s assignee a new Warrant Certificate covering the number of
Shares for which the Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants.
Upon due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.
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By
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Secretary
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Chairman
of the Board
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SUBSCRIPTION
FORM
To Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise
______________ Warrants represented by this Warrant Certificate, and to
purchase the Shares issuable upon the exercise of such Warrants, and requests
that Certificates for such shares shall be issued in the name of
|
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
|
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and be
delivered to
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
and, if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:
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Dated:
_____________________
|
___________________________________________
|
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(SIGNATURE)
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___________________________________________
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(ADDRESS)
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||
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___________________________________________
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||
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___________________________________________
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||
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(TAX
IDENTIFICATION NUMBER)
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ASSIGNMENT
To Be
Executed by the Registered Holder in Order to Assign Warrants
For Value
Received, _______________________ hereby sell, assign, and transfer
unto
|
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
|
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and be
delivered to
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
______________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint _________________________________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.
Dated:
_________________________ _________________________________
(SIGNATURE)
The
signature to the assignment of the Subscription Form must correspond to the name
written upon the face of this Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
commercial bank or trust company or a member firm of the American Stock
Exchange, New York Stock Exchange, Pacific Stock Exchange or Chicago Stock
Exchange.
