REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.2
REGISTRATION
RIGHTS AGREEMENT (this "Agreement"), dated as of June
22, 2007, by and between Celsius Holdings, Inc., a Nevada
corporation, (the "Company"), and Fusion Capital Fund
II, LLC (together with it permitted assigns, the
“Buyer”). Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth in the
Common Stock Purchase Agreement by and between the parties hereto, dated as
of
the date hereof (as amended, restated, supplemented or otherwise modified from
time to time, the "Purchase Agreement").
WHEREAS:
A. The
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to issue to the Buyer (i) up to Sixteen Million Dollars ($16,000,000)
of the Company's common stock, par value $0.001 per share (the "Common
Stock"); and
B. To
induce the Buyer to enter into the Purchase Agreement, the Company has agreed
to
provide certain registration rights under the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the "1933 Act"), and applicable state
securities laws.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and
the Buyer hereby agree as follows:
1. DEFINITIONS.
As
used
in this Agreement, the following terms shall have the following
meanings:
a. "Investor"
means the Buyer, any transferee or assignee thereof to whom a Buyer assigns
its
rights under this Agreement and who agrees to become bound by the provisions
of
this Agreement in accordance with Section 9 and any transferee or assignee
thereof to whom a transferee or assignee assigns its rights under this Agreement
and who agrees to become bound by the provisions of this Agreement in accordance
with Section 9.
b. "Person"
means any person or entity including any corporation, a limited liability
company, an association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof or a governmental
agency.
c. "Register,"
"registered," and "registration" refer to a
registration effected by preparing and filing one or more registration
statements of the Company in compliance with the 1933 Act and pursuant to Rule
415 under the 1933 Act or any successor rule providing for offering securities
on a continuous basis ("Rule 415"), and the declaration or
ordering of effectiveness of such registration statement(s) by the United States
Securities and Exchange Commission (the "SEC").
d. "Registrable
Securities" means 25,000 Signing Shares and
3,057,194 Initial Purchase Shares issued or issuable to the Investor prior
to
Commencement, 10,000,000 Purchase Shares which after Commencement may from
time
to time be issued or issuable upon purchases of the Available Amount under
the
Purchase Agreement, and in each such case, any shares of capital stock issued
or
issuable with respect to such shares or the Purchase
Agreement as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard to any limitation on
purchases under the Purchase Agreement.
e. "Registration
Statement" means the registration statement of the Company covering
only the sale of the Registrable Securities.
2. REGISTRATION.
a. Mandatory
Registration. The Company shall within ten (10) Business Days
from the date hereof file with the SEC the Registration
Statement. The Registration Statement shall register the Registrable
Securities. The Investor and its counsel shall have a reasonable
opportunity to review and comment upon such registration statement or amendment
to such registration statement and any related prospectus prior to its filing
with the SEC. Investor shall furnish all information reasonably
requested by the Company for inclusion therein. The Company shall use
its best efforts to have the Registration Statement or amendment declared
effective by the SEC at the earliest possible date. The Company shall
use reasonable best efforts to keep the Registration Statement effective
pursuant to Rule 415 promulgated under the 1933 Act and available for sales
of
all of the Registrable Securities at all times until the earlier of (i) the
date
as of which the Investor may sell all of the Registrable Securities without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor
thereto) or (ii) the date on which (A) the Investor shall have sold all the
Registrable Securities and no Available Amount remains under the Purchase
Agreement (the "Registration Period"). The
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any 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, in light of the circumstances in
which
they were made, not misleading.
b. Rule
424 Prospectus. The Company shall, as required by applicable
securities regulations, from time to time file with the SEC, pursuant to Rule
424 promulgated under the 1933 Act, the prospectus and prospectus supplements,
if any, to be used in connection with sales of the Registrable Securities under
the Registration Statement. The Investor and its counsel shall have a
reasonable opportunity to review and comment upon such prospectus prior to
its
filing with the SEC. The Investor shall use its reasonable best efforts to
comment upon such prospectus within one (1) Business Day from the date the
Investor receives the final version of such prospectus.
c. Sufficient
Number of Shares Registered. In the event the number of shares
available under the Registration Statement is insufficient to cover all of
the
Registrable Securities, the Company shall amend the Registration Statement
or
file a new registration statement (a ”New Registration
Statement”), so as to cover all of such Registrable Securities as soon
as practicable, but in any event not later than ten (10) Business Days after
the
necessity therefor arises. The Company shall use it reasonable best
efforts to cause such amendment and/or New Registration Statement to become
effective as soon as practicable following the filing thereof.
3. RELATED
OBLIGATIONS.
With
respect to the Registration Statement and whenever any Registrable Securities
are to be registered pursuant to Section 2(b) including on any New Registration
Statement, the Company shall use its reasonable best efforts to effect the
registration of the Registrable Securities in accordance with the intended
method of disposition thereof and, pursuant thereto, the Company shall have
the
following obligations:
2
a. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to any registration statement and
the
prospectus used in connection with such registration statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may
be
necessary to keep the Registration Statement or any New Registration Statement
effective at all times during the Registration Period, and, during such period,
comply with the provisions of the 1933 Act with respect to the disposition
of
all Registrable Securities of the Company covered by the Registration Statement
or any New Registration Statement until such time as all of such Registrable
Securities shall have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof as set forth in such
registration statement.
b. The
Company shall permit the Investor to review and comment upon the Registration
Statement or any New Registration Statement and all amendments and supplements
thereto at least two (2) Business Days prior to their filing with the SEC,
and
not file any document in a form to which Investor reasonably
objects. The Investor shall use its reasonable best efforts to
comment upon the Registration Statement or any New Registration Statement and
any amendments or supplements thereto within two (2) Business Days from the
date
the Investor receives the final version thereof. The
Company shall furnish to the Investor, without charge any correspondence from
the SEC or the staff of the SEC to the Company or its representatives relating
to the Registration Statement or any New Registration Statement.
c. Upon
request of the Investor, the Company shall furnish to the Investor, (i) promptly
after the same is prepared and filed with the SEC, at least one copy of such
registration statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits, (ii) upon the effectiveness of any registration statement, a
copy
of the prospectus included in such registration statement and all amendments
and
supplements thereto (or such other number of copies as the Investor may
reasonably request) and (iii) such other documents, including copies of any
preliminary or final prospectus, as the Investor may reasonably request from
time to time in order to facilitate the disposition of the Registrable
Securities owned by the Investor.
d. The
Company shall use reasonable best efforts to (i) register and qualify the
Registrable Securities covered by a registration statement under such other
securities or "blue sky" laws of such jurisdictions in the United States as
the
Investor reasonably requests, (ii) prepare and file in those jurisdictions,
such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not
be
required in connection therewith or as a condition thereto to (x) qualify to
do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Investor who
holds Registrable Securities of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification of any
of
the Registrable Securities for sale under the securities or "blue sky" laws
of
any jurisdiction in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.
3
e. As
promptly as practicable after becoming aware of such event or facts, the Company
shall notify the Investor in writing of the happening of any event or existence
of such facts as a result of which the prospectus included in any 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, in light of the circumstances under which they
were
made, not misleading, and promptly prepare a supplement or amendment to such
registration statement to correct such untrue statement or omission, and deliver
a copy of such supplement or amendment to the Investor (or such other number
of
copies as the Investor may reasonably request). The Company shall
also promptly notify the Investor in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and when
a
registration statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to the Investor by
facsimile on the same day of such effectiveness and by overnight mail), (ii)
of
any request by the SEC for amendments or supplements to any registration
statement or related prospectus or related information, and (iii) of the
Company's reasonable determination that a post-effective amendment to a
registration statement would be appropriate.
f. The
Company shall use its reasonable best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any registration statement,
or the suspension of the qualification of any Registrable Securities for sale
in
any jurisdiction and, if such an order or suspension is issued, to obtain the
withdrawal of such order or suspension at the earliest possible moment and
to
notify the Investor of the issuance of such order and the resolution thereof
or
its receipt of actual notice of the initiation or threat of any proceeding
for
such purpose.
g. The
Company shall (i) cause all the Registrable Securities to be listed on each
securities exchange on which securities of the same class or series issued
by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure
designation and quotation of all the Registrable Securities on the Principal
Market. The Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section.
h. The
Company shall cooperate with the Investor to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legend) representing
the Registrable Securities to be offered pursuant to any registration statement
and enable such certificates to be in such denominations or amounts as the
Investor may reasonably request and registered in such names as the Investor
may
request.
i. The
Company shall at all times provide a transfer agent and registrar with respect
to its Common Stock.
j. If
reasonably requested by the Investor, the Company shall (i) immediately
incorporate in a prospectus supplement or post-effective amendment such
information as the Investor believes should be included therein relating to
the
sale and distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold,
the
purchase price being paid therefor and any other terms of the offering of the
Registrable Securities; (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the matters to
be
incorporated in such prospectus supplement or post-effective amendment; and
(iii) supplement or make amendments to any registration statement.
4
k. The
Company shall use its reasonable best efforts to cause the Registrable
Securities covered by any registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.
l. Within
one (1) Business Day after any registration statement which includes the
Registrable Securities is ordered effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Investor)
confirmation that such registration statement has been declared effective by
the
SEC in the form attached hereto as Exhibit A. Thereafter, if
requested by the Buyer at any time, the Company shall require its counsel to
deliver to the Buyer a written confirmation whether or not the effectiveness
of
such registration statement has lapsed at any time for any reason (including,
without limitation, the issuance of a stop order) and whether or not the
registration statement is current and available to the Buyer for sale of all
of
the Registrable Securities.
m. The
Company shall take all other reasonable actions necessary to expedite and
facilitate disposition by the Investor of Registrable Securities pursuant to
any
registration statement.
4. OBLIGATIONS
OF THE INVESTOR.
a. The
Company shall notify the Investor in writing of the information the Company
reasonably requires from the Investor in connection with any registration
statement hereunder. The Investor shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as
shall
be reasonably required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the
Company may reasonably request.
b. The
Investor agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any registration
statement hereunder.
c. The
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event or existence of facts of the kind described in Section
3(f) or the first sentence of 3(e), the Investor will immediately discontinue
disposition of Registrable Securities pursuant to any registration statement(s)
covering such Registrable Securities until the Investor's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(f) or the
first sentence of 3(e). Notwithstanding anything to the contrary, the Company
shall cause its transfer agent to promptly deliver shares of Common Stock
without any restrictive legend in accordance with the terms of the Purchase
Agreement in connection with any sale of Registrable Securities with respect
to
which an Investor has entered into a contract for sale prior to the Investor's
receipt of a notice from the Company of the happening of any event of the kind
described in Section 3(f) or the first sentence of 3(e) and for which the
Investor has not yet settled.
5. EXPENSES
OF REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions, incurred in
connection with registrations, filings or qualifications pursuant to Sections
2
and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements
of
counsel for the Company, shall be paid by the Company.
5
6. INDEMNIFICATION.
a. To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend the Investor, each Person, if any, who
controls the Investor, the members, the directors, officers, partners,
employees, agents, representatives of the Investor and each Person, if any,
who
controls the Investor within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act") (each, an
"Indemnified Person"), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, attorneys' fees,
amounts paid in settlement or expenses, joint or several, (collectively,
"Claims") incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from
the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether
or
not an indemnified party is or may be a party thereto ("Indemnified
Damages"), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in the Registration Statement, any New
Registration Statement or any post-effective amendment thereto or in any filing
made in connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which Registrable Securities
are
offered ("Blue Sky Filing"), or the omission or alleged
omission to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the final prospectus (as
amended or supplemented, if the Company files any amendment thereof or
supplement thereto with the SEC) or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were made, not
misleading, (iii) any violation or alleged violation by the Company of the
1933
Act, the 1934 Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer
or
sale of the Registrable Securities pursuant to the Registration Statement or
any
New Registration Statement or (iv) any material violation by the
Company of this Agreement (the matters in the foregoing clauses (i) through
(iv)
being, collectively, "Violations"). The Company
shall reimburse each Indemnified Person promptly as such expenses are incurred
and are due and payable, for any legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not apply
to
a Claim by an Indemnified Person arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing
to the Company by such Indemnified Person expressly for use in connection with
the preparation of the Registration Statement, any New Registration Statement
or
prospectus or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
or
Section 3(e); (ii) with respect to any superceded prospectus, shall not inure
to
the benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the superceded prospectus was corrected
in the revised prospectus, as then amended or supplemented, if such revised
prospectus was timely made available by the Company pursuant to Section 3(c)
or
Section 3(e), and the Indemnified Person was promptly advised in writing not
to
use the incorrect prospectus prior to the use giving rise to a violation and
such Indemnified Person, notwithstanding such advice, used it; (iii) shall
not
be available to the extent such Claim is based on a failure of the Investor
to
deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was timely made available by the Company pursuant
to
Section 3(c) or Section 3(e); and (iv) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably
withheld.
6
Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer
of
the Registrable Securities by the Investor pursuant to Section 9.
b. In
connection with the Registration Statement or any New Registration Statement,
the Investor agrees to severally and not jointly indemnify, hold harmless and
defend, to the same extent and in the same manner as is set forth in Section
6(a), the Company, each of its directors, each of its officers who signs the
Registration Statement or any New Registration Statement, each Person, if any,
who controls the Company within the meaning of the 1933 Act or the 1934 Act
(collectively and together with an Indemnified Person, an "Indemnified
Party"), against any Claim or Indemnified Damages to which any of them
may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as
such Claim or Indemnified Damages arise out of or are based upon any Violation,
in each case to the extent, and only to the extent, that such Violation occurs
in reliance upon and in conformity with written information about the Investor
set forth on Exhibit B attached hereto and furnished to the Company by
the Investor expressly for use in connection with such registration statement;
and, subject to Section 6(d), the Investor will reimburse any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of the
Investor, which consent shall not be unreasonably withheld; provided, further,
however, that the Investor shall be liable under this Section 6(b) for only
that
amount of a Claim or Indemnified Damages as does not exceed the net proceeds
to
the Investor as a result of the sale of Registrable Securities pursuant to
such
registration statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Investor pursuant to Section 9.
c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses to
be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action or
claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding
effected without its written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its
consent.
7
No
indemnifying party shall, without the consent of the Indemnified Party or
Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party or
Indemnified Person of a release from all liability in respect to such claim
or
litigation. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the Indemnified Party
or
Indemnified Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under
this
Section 6, except to the extent that the indemnifying party is prejudiced in
its
ability to defend such action.
d. The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as and
when bills are received or Indemnified Damages are incurred.
e. The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
7. CONTRIBUTION.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from
any seller of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
8. REPORTS
AND DISCLOSURE UNDER THE SECURITIES ACTS.
With
a
view to making available to the Investor the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that
may
at any time permit the Investor to sell securities of the Company to the public
without registration ("Rule 144"), the Company agrees, at the
Company’s sole expense, to:
a. make
and keep public information available, as those terms are understood and defined
in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents required of
the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents
is required for the applicable provisions of Rule 144; and
8
c. furnish
to the Investor so long as the Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied with
the reporting and or disclosure provisions of Rule 144, the 1933 Act and the
1934 Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Investor
to
sell such securities pursuant to Rule 144 without registration.
d. take
such additional action as is requested by the Investor to enable the Investor
to
sell the Registrable Securities pursuant to Rule 144, including, without
limitation, delivering all such legal opinions, consents, certificates,
resolutions and instructions to the Company’s Transfer Agent as may
be requested from time to time by the Investor and otherwise fully
cooperate with Investor and Investor’s broker to effect such sale of securities
pursuant to Rule 144.
The
Company agrees that damages may be
an inadequate remedy for any breach of the terms and provisions of this Section
8 and that Investor shall, whether or not it is pursuing any remedies at law,
be
entitled to equitable relief in the form of a preliminary or permanent
injunctions, without having to post any bond or other security, upon any breach
or threatened breach of any such terms or provisions.
9.
|
ASSIGNMENT
OF REGISTRATION RIGHTS.
|
The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Investor, including by merger or
consolidation. The Investor may not assign its rights under this
Agreement without the written consent of the Company, other than to an affiliate
of the Investor controlled by Xxxxxx X. Xxxxxx or Xxxxxx X.
Xxxxxxxxxx.
10. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Investor.
11. MISCELLANEOUS.
a. A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two
or
more Persons with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
b. Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one (1) Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
9
If
to the
Company:
Celsius,
Holdings, Inc.
000
XX
0xx Xxxxxx, Xxxxx X
Xxxxxx
Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Chief
Financial Officer
With
a
copy to:
Xxxxxx
& Xxxxxx, LLP
0000
Xxxxxx Xxxxx Xxxxxxx, XX, Xxxxx 000
Xxxx
Xxxxx, XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
Attention:
Xxxxx X. Xxxxxxx, Esq.
If
to the
Investor:
Fusion
Capital Fund II, LLC
000
Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx,
XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx
X. Xxxxxx
or
at
such other address and/or facsimile number and/or to the attention of such
other
person as the recipient party has specified by written notice given to each
other party three (3) Business Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
c. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
d. The
corporate laws of the State of Nevada shall govern all issues concerning the
relative rights of the Company and its stockholders. All other
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than
the
State of Illinois. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting the City of
Chicago, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper.
10
Each
party hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by
law. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not
affect the validity or enforceability of the remainder of this Agreement in
that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH
OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
e. This
Agreement, and the Purchase Agreement constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and
therein. This Agreement and the Purchase Agreement supersede all
prior agreements and understandings among the parties hereto with respect to
the
subject matter hereof and thereof.
f. Subject
to the requirements of Section 9, this Agreement shall inure to the benefit
of
and be binding upon the permitted successors and assigns of each of the parties
hereto.
g. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
h. This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
j. The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
k. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
*
* * * * *
11
IN
WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above
written.
THE
COMPANY:
By:____/s/
Jan
Norelid_________
Name:
Jan
Norelid
Title:
Chief Financial Officer
BUYER:
Fusion
Capital Fund II, LLC
By:
Fusion Capital Partners,
LLC
By:
SGM Holdings
Corp.
By:___/s/
Xxxxxx X. Martin______
Name:
Xxxxxx X. Xxxxxx
Title:
President
12
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
_________,
2007
[TRANSFER
AGENT]
________________
________________
Attention:
___________
Ladies
and Gentlemen:
We
are
counsel to Celsius Holdings, Inc., a Nevada corporation (the
“Company”), and have represented the Company in
connection with
that certain Common Stock Purchase Agreement, dated as of ____________, (the
“Purchase Agreement”), entered into by and between the Company
and Fusion Capital Fund II, LLC (the “Buyer”) pursuant to which
the Company has agreed to issue to the Buyer shares of the Company's Common
Stock, par value $0.001 per share (the “Common Stock”), in an
amount up to Sixteen Million Dollars ($16,000,000.00), in accordance with the
terms of the Purchase Agreement. In connection with the transactions
contemplated by the Purchase Agreement, the Company has
registered with the U.S. Securities & Exchange Commission the following
shares of Common Stock:
(1)
|
10,000,000
shares of Common Stock to be issued upon purchase from the Company
by the
Buyer from time to time (the “Purchase
Shares.”).
|
(2)
|
3,168,305
Purchase Shares of Common Stock previously issued to the Buyer (the
“Initial Purchase
Shares.”).
|
(3)
|
25,000
additional shares of Common Stock which have been issued by the
Company to
the Buyer as an expense reimbursement (the “Signing
Shares”).
|
Pursuant to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement, dated as of ___________, with the Buyer (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the Purchase Shares, the Initial Purchase Shares and the Signing Shares under the Securities Act of 1933, as amended (the “1933 Act”).
In
connection with the Company's obligations under the Purchase Agreement and
the
Registration Rights Agreement, on _______, the Company filed a Registration
Statement (File No. 333-_________) (the “Registration
Statement”) with the Securities and Exchange Commission (the
“SEC”) relating to the sale of the Purchase Shares, the
Initial
Purchase Shares and the Signing Shares.
13
In
connection with the foregoing, we advise you that: (1) a member of the SEC's
staff has advised us by telephone that the SEC has entered an order declaring
the Registration Statement effective under the 1933 Act at _____ P.M. on
__________, 2007, (2) we have no knowledge, after telephonic inquiry of a member
of the SEC's staff, that any stop order suspending its effectiveness has been
issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC, (3) the Initial Purchase Shares and the Signing
Shares are available for sale under the 1933 Act pursuant
to the Registration Statement and the restrictive legend on the Initial Purchase
Shares and the Signing Shares shall be removed and (4) the Purchase Shares
are
available for sale under the 1933 Act pursuant to the Registration Statement
and
shall be issued without any restrictive legend.
Very
truly yours,
[Company
Counsel]
By:____________________
CC: Fusion
Capital Fund II, LLC
14
EXHIBIT
B
Information
About The Investor Furnished To The Company By The
Investor
Expressly
For Use In Connection With The Registration Statement
As
of the
date of the Purchase Agreement, Fusion Capital beneficially owned 25,000 shares
of common stock of the Company. Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxxxxx, the principals of Fusion Capital, are deemed to be beneficial owners
of all of the shares of common stock owned by Fusion Capital. Messrs.
Xxxxxx and Xxxxxxxxxx have shared voting and investment power over the shares
being offered under the prospectus filed with the SEC in connection with the
transactions contemplated under the Purchase Agreement. Fusion
Capital is not a licensed broker dealer or an affiliate of a licensed broker
dealer.