PREMIER CONCEPTS, INC.
COHIG & ASSOCIATES, INC.
REPRESENTATIVE'S SHARE OPTION AGREEMENT
Dated as of ________
REPRESENTATIVE'S SHARE OPTION AGREEMENT
THIS REPRESENTATIVE'S SHARE OPTION AGREEMENT (the "Agreement"), dated as
of ____, is made and entered into by and between PREMIER CONCEPTS, INC., a
Colorado corporation (the "Company"), and COHIG & ASSOCIATES, INC. ("Cohig").
The Company agrees to issue and sell, and Cohig agrees to purchase, for the
price of $100, Options to purchase up to an aggregate of 110,000 Shares of the
Company's Common Stock, subject to the terms and conditions set forth below.
In consideration of the foregoing and for the purpose of defining the terms
and provisions of the Options and the respective rights and obligations
thereunder, the Company and Cohig, for value received, hereby agree as follows:
SECTION 1. DEFINITIONS
The following terms used in this agreement shall have the following
meanings (unless otherwise expressly provided herein):
1.1. THE "ACT." The Securities Act of 1933, as amended.
1.2. THE "COMMISSION." The Securities and Exchange Commission.
1.3. THE "COMPANY." Premier Concepts, Inc., a Colorado corporation.
1.4. "COMMON STOCK." The Company's $.002 par value Common Stock.
1.5. "CURRENT MARKET PRICE." The Current Market Price shall be determined
as follows:
(a) if the security at issue is listed on a national securities
exchange or admitted to unlisted trading privileges on such an exchange or
quoted on NASDAQ, the Current Market Price shall be the last reported sale
price of that security on such exchange or system on the day immediately
before the event; or, if no such sale is made on such day, the average of the
highest closing bid and lowest asked price for such day on such exchange or
system; or
(b) if the security at issue is not so listed or quoted or admitted
to unlisted trading privileges, the Current Market Price shall be the average
of the last reported highest bid and lowest asked prices quoted by the
National Quotation Bureau, Inc. on the last business day prior to the day of
the event; or
(c) if the security at issue is not so listed or quoted or admitted
to unlisted trading privileges and bid and asked prices are not reported, the
Current Market Price shall be determined in such reasonable manner as may be
prescribed from time to time by the Board of Directors of the Company.
1.6. "EFFECTIVE DATE." ___________________.
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1.7. "EXERCISE DATE." [one year from Effective Date].
1.8. "EXERCISE PRICE" $__________ per Share, as modified in accordance
with Section 4, below.
1.9. "EXPIRATION DATE." [five years from Effective Date].
1.10. "HOLDER." Cohig & Associates, Inc., and any valid transferee
thereof pursuant to Section 3.1. below.
1.11. "MAJORITY HOLDER." Any Holder, any holder of Option Securities,
or any combination of Holders and such holders of Option Securities; and any
Holder of Warrant Options, any holder of Warrant Option Securities, or any
combination of such Holders and such holders of Warrant Option Securities, if
they hold, in the aggregate, unexercised Options plus issued and outstanding
Option Securities equal to more than 50% of the total of (i) all Option
Securities issued and outstanding as a result of the exercise of the Option, and
(ii) all Option Securities that may at that time be purchased by exercising the
unexercised portion of the Option. For purposes hereof, a Holder of an Option
which entitles the Holder to purchase more than one share or Warrant shall be
deemed to hold Options equal to the number of shares or Warrants which may be
acquired pursuant to any such Option.
1.12. "NASD." The National Association of Securities Dealers, Inc.
1.13. "NASDAQ." The electronic inter-dealer quotation system operated
by the Nasdaq Stock Market, Inc.
1.14. "OPTION." An Option issued in accordance with the terms of this
Agreement and any Option issued in substitution for or replacement of such
Option, or any Option into which such Option may be divided or exchanged.
1.15. "OPTION CERTIFICATE." A certificate substantially in the form of
Exhibit A to this Agreement, issued to a Holder to evidence the Options held by
such Holder.
1.16. "OPTION SECURITIES." The Common Stock purchasable upon exercise
of an Option.
1.17. "PUBLIC OFFERING." The public offering by the Company of
1,100,000 shares of Common Stock and 1,100,000 warrants pursuant to an
underwriting agreement dated as of ______, between the Company and Cohig as
Representative of the several Underwriters named in the underwriting
agreement.
1.18. "TERMINATION OF BUSINESS." Any sale, lease or exchange of all,
or substantially all, of the Company's assets or business or any dissolution,
liquidation or winding up of the Company.
1.19. "UNDERWRITER." A broker-dealer identified as an Underwriter in
the Final Prospectus for the Public Offering.
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1.20. "WARRANT OPTIONS." Those options to purchase Warrants issued to
the Holder concurrently with the issuance of the Share Options under this
Agreement, pursuant to a Representative's Warrant Option Agreement dated the
date of this Agreement.
SECTION 2. TERM OF OPTIONS; EXERCISE OF OPTION
2.1 EXERCISE OF OPTION. Subject to the terms of this Agreement, the
Holder shall have the right, at any time during the four-year period commencing
at 9:00 a.m., Colorado time, on the Exercise Date and ending at 5:00 p.m.,
Colorado time, on the Expiration Date to purchase from the Company up to the
number of fully paid and nonassessable Shares to which the Holder may at the
time be entitled to purchase pursuant to this Agreement, upon surrender to the
Company, at its principal office, of the certificate evidencing the Options to
be exercised, together with the purchase form on the reverse thereof, or the
Cashless Exercise Form in the case of a cashless exercise pursuant to Section
2.2 herein, duly filled in and signed, and upon payment to the Company of the
Exercise Price for the number of Shares in respect of which such Options are
then exercised, but in no event for less than 100 Shares (unless fewer than an
aggregate of 100 shares are then purchasable under all outstanding Options held
by a Holder).
2.2 PAYMENT OF EXERCISE PRICE. Payment of the aggregate Exercise Price
shall be made in cash or by check, or any combination thereof.
2.3. DELIVERY OF OPTION CERTIFICATE. Subject to Section 11, upon receipt
of an Option Certificate with the Notice of Exercise thereon duly executed,
together with payment in full of the Exercise Price for the Shares being
purchased by such exercise, the Company shall requisition from any transfer
agent for the Shares, and upon receipt shall make delivery of certificates
evidencing the total number of whole Shares for which Options are then being
exercised, together with cash as provided in Section 12 hereof in respect of any
fractional Share otherwise issuable upon such surrender. The certificates shall
be in such names and denominations as are required for delivery to, or in
accordance with the instructions of the Holder; provided that if fewer than all
Shares issuable on exercise of an Option Certificate are purchased, the Company
(if so requested) shall issue such balance Option Certificate for the balance of
the Shares. Such certificates for the Shares shall be deemed to be issued, and
the person to whom such Shares are issued of record shall be deemed to have
become a holder of record of such Shares, as of the date of the surrender of
such Option Certificate and payment of the Exercise Price, whichever shall last
occur; provided further that if the books of the Company with respect to the
Shares shall be closed as of such date, the certificates for such Shares shall
be deemed to have been issued, and the person to whom such Shares are issued of
record shall be deemed to have become a record holder of such Shares, as of the
date on which such books shall next be open (whether before, on or after the
applicable Expiration Date) but at the Exercise Price and upon the other
conditions in effect upon the date of surrender of the Option Certificate and
payment of the Exercise Price, whichever shall have last occurred, to the
Company.
2.4 CONVERSION OF OPTION. Subject to the terms of this Agreement, the
Optionholder shall have the right, at any time during the four-year period
commencing at 9:00 a.m., Denver Time, on the Exercise Date and ending at 5:00
p.m., Denver Time, on the Expiration Date to purchase from the Company up to the
number of fully paid and nonassessable Shares to which the
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Optionholder may at the time be entitled to purchase pursuant to this
Agreement, upon surrender to the Company, at its principal office, of the
certificate evidencing the Options to be exercised, together with the
purchase form on the reverse thereof; or to convert the Options into Option
Securities pursuant to Section 4.5 herein, duly filled in and signed, and
upon payment to the Company of the Exercise Price for the number of Shares in
respect of which such Options are then exercised, but in no event for less
than 100 Shares (unless fewer than an aggregate of 100 shares are then
purchasable under all outstanding Options held by a Optionholder).
SECTION 3. TRANSFERABILITY AND FORM OF OPTION
3.1. LIMITATION ON TRANSFER. The Options may not be sold, transferred,
assigned, pledged or hypothecated until the Exercise Date, except for (a) the
sale, transfer, or assignment, in whole or in part, to or among the officers of
Cohig and other Underwriters, if such underwriters are corporations, or the
partners of such Underwriters if they are partnerships, and (b) the transfer by
operation of law as a result of the death of any transferee to whom all or a
portion of the Options may be transferred. After the Exercise Date, the Options
are nontransferable other than by will or pursuant to the laws of descent and
distribution, except to a partner of Cohig and/or the Underwriters when the
underwriter is a partnership, or to a stockholder, officer or director of the
underwriter or beneficiary of a trust which is a stockholder of such underwriter
when the underwriter is a corporation. However, after the Exercise Date such a
transfer may occur providing the Option is exercised immediately upon transfer;
if it is not exercised immediately, the Option shall lapse. All sales,
transfers, assignments or hypothecations of the Options after the Exercise Date
must be in compliance with Section 11 hereof. Any assignment or transfer of an
Option shall be made by the presentation and surrender of this Option to the
Company at its principal office or the office of its transfer agent, if any,
accompanied by a duly executed Assignment Form, in the form attached to and by
this reference incorporated in this Option as Exhibit B. Upon the presentation
and surrender of these items to the Company, the Company, at its sole expense,
shall execute and deliver to the new Holder or Holders a new Option or Options,
subject to the terms and conditions of this Option Agreement, in the name of the
new Holder or Holders as named in the Assignment Form, and the Option shall at
that time be canceled.
3.2. EXCHANGE OF CERTIFICATE. Any Option Certificate may be exchanged for
another certificate or certificates entitling the Holder to purchase a like
aggregate number of Shares as the certificate or certificates surrendered then
entitled such Holder to purchase. Any Holder desiring to exchange an Option
Certificate shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, with signatures guaranteed, the certificate
evidencing the Option to be so exchanged. Thereupon, the Company shall execute
and deliver to the person entitled thereto a new Option Certificate as so
requested.
3.3. MUTILATED, LOST, STOLEN, OR DESTROYED CERTIFICATE. In case the
certificate or certificates evidencing the Options shall be mutilated, lost,
stolen or destroyed, the Company shall, at the request of the Holder, issue and
deliver in exchange and substitution for and upon cancellation of the mutilated
certificate or certificates, or in lieu of and substitution for the certificate
or certificates lost, stolen or destroyed, a new Option Certificate or
certificates of like tenor and representing an equivalent right or interest, but
only upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Option and a bond of indemnity, if requested,
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also satisfactory in form and amount, at the applicant's cost. Applicants
for such substitute Option Certificate shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company
may prescribe.
3.4. FORM OF CERTIFICATE. The text of the Option Certificate and of the
form of election to purchase Shares shall be substantially as set forth in
Exhibit A attached hereto. The number of Shares issuable upon exercise of the
Options is subject to adjustment upon the occurrence of certain events, all as
hereinafter provided. The Option Certificates shall be executed on behalf of
the Company by its President or by a Vice President and attested to by its
Secretary or an Assistant Secretary. An Option Certificate bearing the
signature of an individual who was at any time the proper officer of the Company
shall bind the Company, notwithstanding that such individual shall have ceased
to hold such officer prior to the delivery of such Option Certificate or did not
hold such office on the date of this Agreement.
3.5. DATE OF CERTIFICATE. The Option Certificates shall be dated as of the
date of signature thereof by the Company either upon initial issuance or upon
division, exchange, substitution or transfer.
SECTION 4. ADJUSTMENT OF NUMBER OF SHARES
The number and kind of securities purchasable upon the exercise of the
Options and the Option Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
4.1. ADJUSTMENTS. The number of Shares purchasable upon the exercise of
the Options shall be subject to adjustments as follows:
In case the Company shall (i) pay a dividend in Common Stock or make a
distribution to its shareholders in Common Stock, (ii) subdivide its outstanding
Common Stock, (iii) combine its outstanding Common Stock into a smaller number
of shares of Common Stock, or (iv) issue by classification of its Common Stock
other securities of the Company, the number of Shares purchasable upon exercise
of the Options immediately prior thereto shall be adjusted so that the Holder
shall be entitled to receive the kind and number of Shares or other securities
of the Company which it would have owned or would have been entitled to receive
immediately after the happening of any of the events described above, had the
Options been exercised immediately prior to the happening of such event or any
record date with respect thereto. Any adjustment made pursuant to this
subsection 4.1(a) shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event.
If, prior to the expiration of the Options by exercise, by their terms, or
by redemption, the Company shall be recapitalized by reclassifying its
outstanding shares of Common Stock into shares with a different par value, or by
changing its outstanding shares of Common Stock into shares without par value or
in the event of any other material change of the capital structure of the
Company or of any successor corporation by reason of any reclassification,
recapitalization or conveyance, prompt, proportionate, equitable, lawful and
adequate provision shall be made whereby any Option Holder shall thereafter have
the right to purchase, on the basis and the terms
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and conditions specified in this Agreement, in lieu of the Option Shares
theretofore purchasable on the exercise of any Option, such securities or
assets as may be issued or payable with respect to or in exchange for the
number of Option Shares theretofore purchasable on exercise of the Options
had such reclassification, recapitalization or conveyance not taken place;
and in any such event, the rights of any Option Holder to any adjustment in
the number of Option Shares purchasable on exercise of such Option, as set
forth above, shall continue to be preserved in respect of any stock,
securities or assets which the Option Holder becomes entitled to purchase.
(a) In case the Company shall issue rights, options, warrants, or
convertible securities to all or substantially all holders of its Common Stock,
without any charge to such holders, entitling them to subscribe for or purchase
Common Stock at a price per share which is lower at the record date mentioned
below than the then Current Market Price, the number of Shares thereafter
purchasable upon the exercise of each Option shall be determined by multiplying
the number of Shares theretofore purchasable upon exercise of the Options by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, options, warrants
or convertible securities plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding immediately prior to the issuance
of such rights, options, warrants, or convertible securities plus the number of
shares which the aggregate offering price of the total number of shares offered
would purchase at such Current Market Price. Such adjustment shall be made
whenever such rights, options, warrants, or convertible securities are issued,
and shall become effective immediately and retroactively to the record date for
the determination of shareholders entitled to receive such rights, options,
warrants, or convertible securities.
(b) In case the Company shall distribute to all or substantially all
holders of its Common Stock evidences of its indebtedness or assets (excluding
cash dividends or distributions out of earnings) or rights, options, warrants,
or convertible securities containing the right to subscribe for or purchase
Common Stock (excluding those referred to in subsection 4.1(b) above), then in
each case the number of Shares thereafter purchasable upon the exercise of the
Options shall be determined by multiplying the number of Shares theretofor
purchasable upon exercise of the Options by a fraction, of which the numerator
shall be the then Current Market Price on the date of such distribution, and of
which the denominator shall be such Current Market Price on such date minus the
then fair value (determined as provided in subsection 4.1(f)(y) below) of the
portion of the assets or evidences of indebtedness so distributed or of such
subscription rights, options, warrants, or convertible securities applicable to
one share. Such adjustment shall be made whenever any such distribution is made
and shall become effective on the date of distribution retroactive to the record
date for the determination of shareholders entitled to receive such
distribution.
(c) No adjustment in the number of Shares purchasable pursuant to the
Options shall be required unless such adjustment would require an increase or
decrease of at least one percent in the number of Shares then purchasable upon
the exercise of the Options or, if the Options are not then exercisable, the
number of Shares purchasable upon the exercise of the Options on the first date
thereafter that the Options become exercisable; provided, however, that any
adjustments which by reason of this subsection 4.1(d) are not required to be
made immediately shall be carried forward and taken into account in any
subsequent adjustment.
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(d) Whenever the number of Shares purchasable upon the exercise of
the Option is adjusted, as herein provided, the Exercise Price payable upon
exercise of the Option shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator
shall be the number of Option Shares purchasable upon the exercise of the
Option immediately prior to such adjustment, and of which the denominator
shall be the number of Option Shares so purchasable immediately thereafter.
(e) Whenever the number of Shares purchasable upon exercise of the
Options is adjusted as herein provided, the Company shall cause to be
promptly mailed to the Holder by first class mail, postage prepaid, notice of
such adjustment and a certificate of the chief financial officer of the
Company setting forth the number of Shares purchasable upon the exercise of
the Options after such adjustment, a brief statement of the facts requiring
such adjustment and the computation by which such adjustment was made.
(f) For the purpose of this subsection 4.1, the term "Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par value,
or from no par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to this Section 4, the Holder shall
become entitled to purchase any securities of the Company other than Common
Stock, (y) if the Holder's right to purchase is on any other basis than that
available to all holders of the Company's Common Stock, the Company shall
obtain an opinion of an independent investment banking firm valuing such
other securities; and (z) thereafter the number of such other securities so
purchasable upon exercise of the Options shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the Shares contained in this Section 4.
(g) Upon the expiration of any rights, options, warrants, or
conversion privileges, if such shall have not been exercised, the number of
Shares purchasable upon exercise of the Options, to the extent the Options
have not then been exercised, shall, upon such expiration, be readjusted and
shall thereafter be such as they would have been had they been originally
adjusted (or had the original adjustment not been required, as the case may
be) on the basis of (i) the fact that the only shares of Common Stock so
issued were the shares of Common Stock, if any, actually issued or sold upon
the exercise of such rights, options, warrants, or conversion privileges, and
(ii) the fact that such shares of Common Stock, if any, were issued or sold
for the consideration actually received by the Company upon such exercise
plus the consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants, or conversion
privileges whether or not exercised; provided, however, that no such
readjustment shall have the effect of decreasing the number of Shares
purchasable upon exercise of the Options by an amount in excess of the amount
of the adjustment initially made in respect of the issuance, sale, or grant
of such rights, options, warrants, or conversion rights.
4.2. NO ADJUSTMENT FOR DIVIDENDS. Except as provided in subsection 4.1,
no adjustment in respect of any dividends or distributions out of earnings
shall be made during the term of the Options or upon the exercise of the
Options.
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4.3. NO ADJUSTMENT IN CERTAIN CASES. No adjustments shall be made
pursuant to Section 4 hereof in connection with the issuance of the Common
Stock sold as part of the public sale pursuant to the Underwriting Agreement
or the issuance of Shares upon exercise of the Options. No adjustments shall
be made pursuant to Section 4 hereof in connection with the grant or exercise
of presently authorized or outstanding options to purchase, or the issuance
of shares, under the Company's director or employee benefit plans disclosed
in the Registration Statement relating to the Public Offering.
4.4. PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or
merger of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property, assets, or business of the
Company as an entirety or substantially as an entirety, the Company or such
successor or purchasing corporation, as the case may be, shall execute with
the Holder an agreement that the Holder shall have the right thereafter upon
payment of the Exercise Price in effect immediately prior to such action to
purchase, upon exercise of the Options, the kind and amount of shares and
other securities and property which it would have owned or have been entitled
to receive after the happening of such consolidation, merger, sale, or
conveyance had the Options been exercised immediately prior to such action.
In the event of a merger described in Section 368(a)(2)(E) of the Internal
Revenue Code of 1986, in which the Company is the surviving corporation, the
right to purchase Shares under the Options shall terminate on the date of
such merger and thereupon the Options shall become null and void, but only if
the controlling corporation shall agree to substitute for the Options, its
Options which entitle the holder thereof to purchase upon their exercise the
kind and amount of shares and other securities and property which it would
have owned or been entitled to receive had the Options been exercised
immediately prior to such merger. Any such agreements referred to in this
subsection 4.4 shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section 4
hereof. The provisions of this subsection 4.4 shall similarly apply to
successive consolidations, mergers, sales, or conveyances.
4.5. PAR VALUE OF SHARES OF COMMON STOCK. Before taking any action which
would cause an adjustment effectively reducing the portion of the Exercise
Price allocable to each Share below the par value per share of the Common
Stock issuable upon exercise of the Options, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Common Stock upon exercise of the Options.
4.6. INDEPENDENT PUBLIC ACCOUNTANTS. The Company may retain a firm of
independent public accountants of recognized national standing (which may be
any such firm regularly employed by the Company) to make any computation
required under this Section 4, and a certificate signed by such firm shall be
conclusive evidence of the correctness of any computation made under this
Section 4.
4.7. STATEMENT ON OPTION CERTIFICATES. Irrespective of any adjustments
in the number of securities issuable upon exercise of the Options, Option
Certificates theretofore or thereafter issued may continue to express the
same number of securities as are stated in the similar Option Certificates
initially issuable pursuant to this Agreement. However, the Company may, at
any time
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in its sole discretion (which shall be conclusive), make any change in the
form of Option Certificate that it may deem appropriate and that does not
affect the substance thereof; and any Option Certificate thereafter issued,
whether upon registration of transfer of, or in exchange or substitution for,
an outstanding Option Certificate, may be in the form so changed.
4.8. TREASURY STOCK. For purposes of this Section 4, shares of Common
Stock owned or held at any relevant time by, or for the account of, the
Company, in its treasury or otherwise, shall not be deemed to be outstanding
for purposes of the calculations and adjustments described.
SECTION 5. NOTICE TO HOLDERS
5.1. ADJUSTMENTS. Whenever the number of Shares purchasable upon
exercise of the Options is adjusted as herein provided, the Company shall
cause to be promptly mailed to the Holder by first class mail, postage
prepaid, notice of such adjustment and a certificate of the chief financial
officer of the Company setting forth the number of Shares purchasable upon
the exercise of the Options after such adjustment, a brief statement of the
facts requiring such adjustment and the computation by which such adjustment
was made.
5.2. DECLARATION OF DIVIDEND; REORGANIZATION; DISSOLUTION; ETC. If,
prior to the expiration of the Options either by their terms or by their
exercise in full, any of the following shall occur:
(a) the Company shall declare a dividend or authorize any other
distribution on its Common Stock; or
(b) the Company shall authorize the granting to the shareholders of
its Common Stock of rights to subscribe for or purchase any securities or any
other similar rights; or
(c) any reclassification, reorganization or similar change of the
Common Stock, or any consolidation or merger to which the Company is a party,
or the sale, lease, or exchange of any significant portion of the assets of
the Company; or
(d) the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) any purchase, retirement or redemption by the Company of its
Common Stock;
then, and in any such case, the Company shall deliver to the Holder or
Holders written notice thereof at least 30 days prior to the earliest
applicable date specified below with respect to which notice is to be given,
which notice shall state the following:
(a) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights, or, if a record is not to be taken,
the date as of which the shareholders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined;
(b) the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up
or purchase, retirement or redemption
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is expected to become effective, and the date, if any, as of which the
Company's shareholders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, reorganization, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up, purchase, retirement or redemption; and
(c) if any matters referred to in the foregoing clauses (x) and (y)
are to be voted upon by shareholders of Common Stock, the date as of which
those shareholders to be entitled to vote are to be determined.
5.3. FAILURE TO GIVE NOTICE. Without limiting the obligation of the
Company hereunder to provide notice to each Warrant Holder, it is agreed that
failure of the Company to give notice shall not invalidate corporate action
taken by the Company.
SECTION 6. OFFICERS' CERTIFICATE
Whenever the Exercise Price or the aggregate number of Option Securities
purchasable pursuant to the Options shall be adjusted as required by the
provisions of Section 4 above, the Company shall promptly file with its
Secretary or an Assistant Secretary at its principal office, and with its
transfer agent, if any, an officers' certificate executed by the Company's
President and Secretary or Assistant Secretary, describing the adjustment and
setting forth, in reasonable detail, the facts requiring such adjustment and
the basis for and calculation of such adjustment in accordance with the
provisions of this Option Agreement. Each such officers' certificate shall
be made available to the Holder or Holders of the Options for inspection at
all reasonable times, and the Company, after each such adjustment, shall
promptly deliver a copy of the officers' certificate relating to that
adjustment to the Holder or Holders of the Options. The officers'
certificate described in this Section 6 shall be deemed to be conclusive as
to the correctness of the adjustment reflected therein if, and only if, no
Holder of an Option delivers written notice to the Company of an objection to
the adjustment within 30 days after the officers' certificate is delivered to
the Holder or Holders of the Options. The Company will make its books and
records available for inspection and copying during normal business hours by
the Holder so as to permit a determination as to the correctness of the
adjustment. If written notice of an objection is delivered by a Holder to
the Company and the parties cannot reconcile the dispute, the Holder and the
Company shall submit the dispute to arbitration pursuant to the provisions of
Section 19 below. Failure to prepare or provide the officers' certificate
shall not modify the parties' rights hereunder.
SECTION 7. RESERVATION OF OPTION SECURITIES
There has been reserved, and the Company shall at all times keep reserved
so long as the Options remain outstanding, out of its authorized and unissued
Common Stock, such number of shares of Common Stock as shall be subject to
purchase under the Options. Every transfer agent for the Common Stock and
other securities of the Company issuable upon the exercise of the Options
will be irrevocably authorized and directed at all times to reserve such
number of authorized shares and other securities as shall be requisite for
such purpose. The Company will keep a copy of this Agreement on file with
every transfer agent for the Common Stock and other securities of the Company
issuable upon the exercise of the Options. The Company will supply
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every such transfer agent with duly executed stock and other certificates, as
appropriate, for such purpose.
SECTION 8. REGISTRATION RIGHTS
8.1. DEMAND REGISTRATION RIGHT. Upon the written request of a Majority
Holder, made at any time after the Exercise Date, but before the Expiration
Date, the Company shall file within 90 days of such written request a
registration statement or Regulation A offering statement pursuant to the
Act, and all necessary amendments thereto, to register or qualify the Option
Securities and the Option Securities underlying the unexercised portion of
the Options. No additional securities shall be included in such registration
statement or offering statement without the written consent of the Majority
Holder. The Company may use the Regulation A exemption if available, but the
Company must file a registration statement if the securities that are to be
covered cannot be sold pursuant to Regulation A because of the limitations
applicable to the use of the Regulation A exemption. The Company agrees to
use its best efforts to cause this registration or qualification to become
effective as promptly as practicable and to keep such registration effective
for a period of the lesser of 180 days or the date of completion of the
distribution described in the Registration Statement; and its officers,
directors, consultants, auditors and counsel shall cooperate in all matters
necessary or advisable to pursue this objective. All of the expenses of this
registration or qualification shall be borne by the Company, including, but
not limited to, legal, accounting, consulting, printing, filing and NASD
fees, out-of-pocket expenses incurred by counsel, accountants, and
consultants retained by the Company and miscellaneous expenses directly
related to the registration statement or offering statement and the offering,
and the underwriter's accountable and nonaccountable expense allowances and
fees; but the Company shall not pay any brokerage fees, commissions or
underwriting discounts except to the extent they are attributable to other
securities that the Company has been permitted to register or qualify or to
offer in conjunction with the registration and qualification of the Option,
Option Securities or the Option Securities underlying the unexercised portion
of the Options. Notwithstanding the foregoing, if, as a qualification of any
offering in any state or jurisdiction in which the Company (by vote of its
Board of Directors) or any underwriter determines in good faith that it
wishes to offer securities registered in the offering, it is required that
offering expenses be allocated in a manner different from that provided
above, then the offering expenses shall be allocated in whatever manner is
most nearly in compliance with the provisions set out above. The Majority
Holder shall be entitled to exercise the rights described in this subsection
8.1 one time only.
Within 10 days after the delivery by the Majority Holder to the Company
of the notice described above, the Company shall deliver written notice to
all other Holders of the Options and holders of the Option Securities, if
any, advising them that the Company is proceeding with a registration
statement or offering statement and offering them the right to include the
Option and Option Securities of those Holders or holders therein. If any
Holder of a Option and Option Securities delivers written acceptance of that
offer to the Company within 30 days after the delivery of the Company's
notice, the Company shall be obligated to include that holder's Option and
that holder's Option Securities in the contemplated registration statement or
offering statement.
11
8.2. PIGGY-BACK REGISTRATION RIGHT. If at any time prior to the
Expiration Date the Company files a registration statement with the
Commission pursuant to the Act, or pursuant to any other act passed after the
date of this Agreement, which filing provides for the sale of securities by
the Company to the public, or files a Regulation A offering statement under
the Act, the Company shall offer to the Holder or Holders of the Options and
the holders of any Option Securities the opportunity to register or qualify
the Option Securities and any Option Securities underlying the unexercised
portion of the Options, if any, at the Company's sole expense, regardless of
whether the Holder or Holders of the Options or the holders of Option
Securities or both may have previously availed themselves of any of the
registration rights described in this Section 8; provided, however, that in
the case of a Regulation A offering, the opportunity to qualify shall be
limited to the amount of the available exemption after taking into account
the securities that the Company wishes to qualify. Notwithstanding anything
to the contrary, this subsection 8.2 shall not be applicable to a
registration statement registering securities issued or issuable pursuant to
an employee benefit plan or as to a transaction subject to Rule 145
promulgated under the Act or which a form S-4 registration statement could be
used.
The Company shall deliver written notice to the Holder or Holders of the
Options and to any holders of the Option Securities of its intention to file a
registration statement or Regulation A offering statement under the Act at least
60 days prior to the filing of such registration statement or offering
statement, and the Holder or Holders and holders of Option Securities shall have
30 days thereafter to request in writing that the Company register or qualify
the Option Securities or the Option Securities underlying the unexercised
portion of the Options in accordance with this subsection 8.2. Upon the
delivery of such a written request within the specified time, the Company shall
be obligated to include in its contemplated registration statement or offering
statement all information necessary or advisable to register or qualify the
Option Securities or Option Securities underlying the unexercised portion of the
Options for a public offering, if the Company does file the contemplated
registration statement or offering statement; provided, however, that neither
the delivery of the notice by the Company nor the delivery of a request by a
Holder or by a holder of Option Securities shall in any way obligate the Company
to file a registration statement or offering statement. Furthermore,
notwithstanding the filing of a registration statement or offering statement,
the Company may, at any time prior to the effective date thereof, determine not
to offer the securities to which the registration statement or offering
statement relates, other than the Option, Option Securities and Option
Securities underlying the unexercised portion of the Options. Notwithstanding
the foregoing, if, as a qualification of any offering in any state or
jurisdiction in which the Company (by vote of its Board of Directors) or any
underwriter determines in good faith that it wishes to offer securities
registered in the offering, it is required that offering expenses be allocated
in a manner different from that provided above, then the offering expenses shall
be allocated in whatever manner is most nearly in compliance with the provisions
set out above.
The Company shall comply with the requirements of this subsection 8.2 and
the related requirements of subsection 8.7 at its own expense. That expense
shall include, but not be limited to, legal, accounting, consulting, printing,
federal and state filing fees, NASD fees, out-of-pocket expenses incurred by
counsel, accountants and consultants retained by the Company, and miscellaneous
expenses directly related to the registration statement or offering statement
and the offering. However, this expense shall not include the portion of any
underwriting commissions, transfer taxes and the underwriter's accountable and
nonaccountable expense allowances
12
attributable to the offer and sale of the Option, Option Securities and the
Option Securities underlying the unexercised portion of the Options, all of
which expenses shall be borne by the Holder or Holders of the Options and the
holders of the Option Securities registered or qualified.
8.3. INCLUSION OF INFORMATION. In the event that the Company registers
or qualifies the Option, Option Securities or the Option Securities
underlying the unexercised portion of the Options pursuant to subsections 8.1
or 8.2 above, the Company shall include in the registration statement or
qualification, and the prospectus included therein, all information and
materials necessary or advisable to comply with the applicable statutes and
regulations so as to permit the public sale of the Option Securities or the
Option Securities underlying the unexercised portion of the Options. As used
in subsections 8.1 and 8.2, reference to the Company's securities shall
include, but not be limited to, any class or type of the Company's securities
or the securities of any of the Company's subsidiaries or affiliates.
8.4. REGISTRATION STATEMENT FILED BY HOLDER. In addition to the
registration rights described in subsections 8.1 and 8.2 above, upon the
written request of any Majority Holder, the Company, as promptly as possible
after delivery of such request, shall cooperate with the requesting Majority
Holder or holder in preparing and signing any registration statement or
offering statement that the Holder or holder may desire to file in order to
sell or transfer the Option and Option Securities. Within 10 days after the
delivery of the written request described above, the Company shall deliver
written notice to all other Holders of the Options and holders of Option
Securities, if any, advising them that the Company is proceeding with a
registration statement or offering statement and that their Option and Option
Securities will be included therein if they so desire and agree to pay their
pro rata share of the cost of registration or qualification and provided that
the Holder or holder delivers written notice to the Company of their desire
to be included and their agreement to pay their pro rata share of the cost
within 30 days after the delivery of the Company's notice to them. The
Company will supply all information necessary or advisable for any such
registration statements or offering statements; provided, however, that all
the costs and expenses of such registration statements or offering statements
shall be borne, in a manner proportionate to the number of securities for
which they indicate a desire to register, by the Holders of the Options and
the holders of Option Securities who seek the registration or qualification
of their Option, Option Securities or Option Securities underlying the
unexercised portion of their Option. In determining the amount of costs and
expenses to be borne by those Holders or holders, the only costs and expenses
of the Company to be included are the additional costs and expenses that
would not have otherwise been incurred by the Company if those Holders or
holders had not desired to file a registration statement or offering
statement. As an example, and without limitation, audit fees would not be
charged to those Holders or holders if or to the extent that the Company
would have incurred the same audit fees for its year-end or other use in the
absence of the registration statement or offering statement. The Holders or
holders responsible for the costs and expenses shall reimburse the Company
for those reimbursable costs and expenses reasonably incurred by the Company
within 30 days after the initial effective date of the registration statement
or qualification at issue.
8.5. PAYMENT OF EXERCISE PRICE FROM PROCEEDS. In the event that any such
Registration Statement is utilized for a public offering of any of the Shares to
be received upon exercise of the Options pursuant to this Section 8, the Holder
may elect to pay the exercise price of the Options
13
to the Company out of the proceeds of the sale of the Shares pursuant to the
Registration Statement concurrently with the closing of such sale of the
Shares; provided that if such sale is not closed within 90 days of the
effective date of such Registration Statement, then the Holder shall be
obligated to pay the exercise price of the Options to the Company on such
90th day.
8.6. CONDITION OF COMPANY'S OBLIGATIONS. As to each registration
statement or offering statement, the Company's obligations contained in this
Section 8 shall be conditioned upon a timely receipt by the Company in
writing of the following:
(a) Information as to the terms of the contemplated public offering
furnished by and on behalf of each Holder or holder intending to make a
public distribution of the Option Securities or Option Securities underlying
the unexercised portion of the Option; and
(b) Such other information as the Company may reasonably require
from such Holders or holders, or any underwriter for any of them, for
inclusion in the registration statement or offering statement.
8.7. ADDITIONAL REQUIREMENTS. In each instance in which the Company
shall take any action to register or qualify the Option Securities or the
Option Securities underlying the unexercised portion of the Options, if any,
pursuant to this Section 8, the Company shall do the following:
(a) supply to Cohig, as the representative of the Holders of the
Option and the holders of Option Securities whose Option Securities are being
registered or qualified, two (2) manually signed copies of each registration
statement or offering statement, and all amendments thereto, and a reasonable
number of copies of the preliminary, final or other prospectus or offering
circular, all prepared in conformity with the requirements of the Act and the
rules and regulations promulgated thereunder, and such other documents as
Cohig shall reasonably request;
(b) cooperate with respect to (i) all necessary or advisable
actions relating to the preparation and the filing of any registration
statements or offering statements, and all amendments thereto, arising from
the provisions of this Section 8, (ii) all reasonable efforts to establish an
exemption from the provisions of the Act or any other federal or state
securities statutes, (iii) all necessary or advisable actions to register or
qualify the public offering at issue pursuant to federal securities statutes
and the state "blue sky" securities statutes of each jurisdiction that the
Holders of the Option or holders of Option Securities shall reasonably
request, and (iv) all other necessary or advisable actions to enable the
Holders of the Option Securities to complete the contemplated disposition of
their securities in each reasonably requested jurisdiction; and
(c) keep all registration statements or offering statements to
which this Section 8 applies, and all amendments thereto, effective under the
Act for a period of at least 180 days after their initial effective date and
cooperate with respect to all necessary or advisable actions to permit the
completion of the public sale or other disposition of the securities subject
to a registration statement or offering statement.
14
8.8. RECIPROCAL INDEMNIFICATION. In each instance in which pursuant to
this Section 8 the Company shall take any action to register or qualify the
Securities or the Option Securities underlying the unexercised portion of the
Options, prior to the effective date of any registration statement or offering
statement, the Company and each Holder or holder of Options or Option Securities
being registered or qualified shall enter into reciprocal indemnification and
contribution agreements, in the form customarily used by reputable investment
bankers with respect to public offerings of securities, containing substantially
the same terms as described in Section 10.
8.9. COHIG AS REPRESENTATIVE. For purposes of subsection 8.6 (a) above, by
the receipt of an Option or any Option Securities, all Holders and all holders
of Option Securities acknowledge and agree that Cohig is and shall be their
representative.
8.10. SURVIVAL. The Company's obligations described in this Section 8
shall continue in full force and effect regardless of the exercise, surrender,
cancellation or expiration of the Options, unless the Options expire
unexercised.
SECTION 9. PAYMENT OF TAXES
The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of the Options or the securities comprising the Shares;
provided, however, the Company shall not be required to pay any tax which may be
payable in respect of any transfer of the Options or the securities comprising
the Shares.
SECTION 10. RESTRICTIONS ON TRANSFER
10.1. RESTRICTIONS ON TRANSFER. The Options, the Option Securities,
and all other securities issued or issuable upon exercise of the Options, may
not be offered, sold or transferred, in whole or in part, except in compliance
with the Act, and except in compliance with all applicable state securities
laws. The Holder agrees that prior to making any disposition of the Options,
other than to persons or entities identified in Section 3.1, the Holder shall
give written notice to the Company describing briefly the manner in which any
such proposed disposition is to be made; and no such disposition shall be made
if the Company has notified the Holder that in the opinion of counsel reasonably
satisfactory to the Holder a registration statement or other notification or
post-effective amendment thereto (hereinafter collectively a "Registration
Statement") under the Act is required with respect to such disposition and no
such Registration Statement has been filed by the Company with, and declared
effective, if necessary, by, the Commission.
10.2. RESTRICTIVE LEGEND. The Company may cause substantially the
following legends, or their equivalents, to be set forth on each certificate
representing the Options, the Option Securities, or any other security issued or
issuable upon exercise of the Options, not theretofore distributed to the public
or sold to underwriters, as defined by the Act, for distribution to the public
pursuant to Section 8 above:
15
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND
MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT
IN COMPLIANCE WITH THE AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED."
(b) Any legend required by applicable state securities laws.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legends (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement
under the Securities Act of 1933, as amended (the "Act"), or the securities
represented thereby) shall also bear the above legends unless, in the opinion
of the Company's counsel, the securities represented thereby need no longer
be subject to such restrictions.
SECTION 11. FRACTIONAL SHARES
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of all or any part of an Option. With respect to
any fraction of a share of any security called for upon any exercise of an
Option, the Company shall pay to the Holder an amount in money equal to that
fraction multiplied by the Current Market Price of that share.
SECTION 12. NO RIGHTS AS SHAREHOLDER; NOTICES TO HOLDER
Nothing contained in this Agreement or in the Options shall be construed
as conferring upon the Holder or its transferees any rights as a shareholder
of the Company, including the right to vote, receive dividends, consent or
receive notices as a shareholder in respect to any meeting of shareholders
for the election of directors of the Company or any other matter. The
Company covenants, however, that for so long as an Option is unexercised, it
will furnish any Holder of the Options with copies of all reports and
communications furnished to the shareholders of the Company. In addition, if
at any time prior to the expiration of the Options and prior to their
exercise, any one or more of the following events shall occur:
(a) any action which would require an adjustment pursuant to
Section 4.1 or 4.4; or
(b) a dissolution, liquidation, or winding up of the Company (other
than in connection with a consolidation, merger, or sale of its property,
assets, and business as an entirety or substantially as an entirety) shall be
proposed:
then the Company shall give notice in writing of such event to the
Holder, as provided in Section 15 hereof, at least 20 days prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to any relevant dividend,
distribution, subscription rights or other rights or for the determination of
shareholders entitled to vote on such proposed dissolution, liquidation, or
winding up. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to mail or receive
notice or any defect therein shall not affect the validity of any action
taken with respect thereto.
16
SECTION 13. CHARGES DUE UPON EXERCISE
The Company shall pay any and all issue or transfer taxes, including, but
not limited to, all federal or state taxes, that may be payable with respect
to the transfer of an Option or the issue or delivery of Option Securities
upon the exercise of an Option.
SECTION 14. OPTION SECURITIES TO BE FULLY PAID
The Company covenants that all Option Securities that may be issued and
delivered to a Holder of this Option upon the exercise of this Option and
payment of the Exercise Price will be, upon such delivery, validly and duly
issued, fully paid and nonassessable.
SECTION 15. NOTICES
Any notice pursuant to this Agreement by the Company or by an Holder or a
holder of Shares shall be in writing and shall be deemed to have been duly
given if delivered or mailed by certified mail, return receipt requested:
(a) If to a Holder or a holder of Shares, addressed to Cohig &
Associates, Inc., ββββ βββββ ββββββββ βββ, βββββ βββ, βββββββββ, ββββββββ
βββββ, Attention: Corporate Finance Department; or
(b) If to the Company addressed to it at ββββ βββββ ββββββ ββββ,
βββββ βββ, ββββββ, ββββββββ βββββ, Attention: ββββββ β. βββββββββ, President.
Each party may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith
to the other party.
SECTION 16. MERGER OR CONSOLIDATION OF THE COMPANY
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
corporation, unless the provisions of Section 4.4 are complied with.
SECTION 17. APPLICABLE LAW
The Options and this Option Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado, and courts located in
Colorado shall have exclusive jurisdiction over all disputes arising
hereunder.
SECTION 18. ARBITRATION
The Company and the Holder, and by receipt of an Option or any Option
Securities, all subsequent Holders or holders of Option Securities, agree to
submit all controversies, claims, disputes and matters of difference with
respect to the Options and this Option Agreement, including, without limitation,
the application of this Section 18 to arbitration in Denver, Colorado,
17
according to the rules and practices of the American Arbitration Association
from time to time in force; provided, however, that if such rules and
practices conflict with the applicable procedures of Colorado courts of
general jurisdiction or any other provisions of Colorado law then in force,
those Colorado rules and provisions shall govern. This agreement to
arbitrate shall be specifically enforceable. Arbitration may proceed in the
absence of any party if notice of the proceeding has been given to that
party. The parties agree to abide by all awards rendered in any such
proceeding. These awards shall be final and binding on all parties to the
extent and in the manner provided by the rules of civil procedure enacted in
Colorado. All awards may be filed, as a basis of judgment and of the
issuance of execution for its collection, with the clerk of one or more
courts, state or federal, having jurisdiction over either the party against
whom that award is rendered or its property. No party shall be considered in
default hereunder during the pendency of arbitration proceedings relating to
that default.
SECTION 19. MISCELLANEOUS PROVISIONS
(a) Subject to the terms and conditions contained herein, this
Option Agreement shall be binding on the Company and its successors and shall
inure to the benefit of the original Holder, its successors and assigns and
all holders of Option Securities and the exercise of this Option Agreement in
full shall not terminate the provisions of this Option Agreement as it
relates to holders of Option Securities.
(b) If the Company fails to perform any of its obligations
hereunder, it shall be liable to the Holder for all damages, costs and
expenses resulting from the failure, including, but not limited to, all
reasonable attorney's fees and disbursements.
(c) This Option Agreement cannot be changed or terminated or any
performance or condition waived in whole or in part except by an agreement in
writing signed by the party against whom enforcement of the change,
termination or waiver is sought; provided, however, that any provisions
hereof may be amended, waived, discharged or terminated upon the written
consent of the Company and Cohig.
(d) If any provision of this Option Agreement shall be held to be
invalid, illegal or unenforceable, such provision shall be severed, enforced
to the extent possible, or modified in such a way as to make it enforceable,
and the invalidity, illegality or unenforceability shall not affect the
remainder of this Option Agreement.
(e) The Company and the Holders agree to execute such further
agreements, conveyances, certificates and other documents as may be
reasonably requested to effectuate the intent and provisions of this Option
Agreement.
(f) Paragraph headings used in this Option Agreement are for
convenience only and shall not be taken or construed to define or limit any
of the terms or provisions of this Option Agreement. Unless otherwise
provided, or unless the context shall otherwise require, the use of the
singular shall include the plural and the use of any gender shall include all
genders.
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
PREMIER CONCEPTS, INC.
By:
-----------------------------------
ββββββ β. βββββββββ, President
COHIG & ASSOCIATES, INC.
By:
-----------------------------------
19
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED,
HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH THE
AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED.
Option Certificate No. __________
REPRESENTATIVE'S OPTIONS TO PURCHASE __________
SHARES OF COMMON STOCK
PREMIER CONCEPTS, INC.
INCORPORATED UNDER THE LAWS
OF THE STATE OF COLORADO
This certifies that, for value received, ________________, the registered
holder hereof or assigns (the "Holder"), is entitled to purchase from Premier
Concepts, Inc. (the "Company"), at any time during the period commencing at
9:00 a.m., Colorado time, on ___________________ and ending at 5:00 p.m.,
Colorado time, on __________ at the purchase price per Share of
_______________ (the "Exercise Price"), the number of shares of Common Stock
of the Company set forth above (the "Shares"). The number of shares of
Common Stock of the Company purchasable upon exercise of the Options
evidenced hereby shall be subject to adjustment from time to time as set
forth in the Representative's Option Agreement.
The Options evidenced hereby may be exercised in whole or in part by
presentation of this Option Certificate with the Purchase Form attached
hereto duly executed (with a signature guarantee as provided thereon) and
simultaneous payment of the Exercise Price at the principal office of the
Company. Payment of such price shall be made at the option of the Holder in
cash or by check or by Cashless Exercise subject to the provisions of Section
2 of the Representative's Option Agreement (as that term is defined herein).
The Options evidenced hereby represent the right to purchase an aggregate
of up to 110,000 Shares and are issued under and in accordance with a
Representative's Share Option Agreement, dated as of ____________, between
the Company and Cohig & Associates, Inc. and are subject to the terms and
provisions contained in the Representative's Option Agreement, to all of
which the Holder by acceptance hereof consents.
Upon any partial exercise of the Options evidenced hereby, there shall be
signed and issued to the Holder a new Option Certificate in respect of the
Shares as to which the Options evidenced hereby shall not have been
exercised. These Options may be exchanged at the office of the Company by
surrender of this Option Certificate properly endorsed for one or more new
Options of the same aggregate number of Shares as here evidenced by the
Option or Options exchanged. No fractional shares of Common Stock will be
issued upon the exercise of rights to purchase hereunder, but the Company
shall pay the cash value of any fraction upon the exercise of one or more
Options. These Options are transferable at the office of the Company in the
manner and subject to the limitations set forth in the Representative's
Option Agreement.
1
This Option Certificate does not entitle any Holder to any of the rights
of a shareholder of the Company.
PREMIER CONCEPTS, INC.
By:
----------------------------------
ββββββ β. βββββββββ, President
Dated:
[Seal]
Attest:
-------------------------------
Secretary
2
NOTICE OF EXERCISE
(To be executed by a Holder desiring to exercise the right to purchase
Shares pursuant to a Option.)
The undersigned Holder of a Option hereby
(a) irrevocably elects to exercise the Option to the extent of
purchasing _______________ Shares;
(b) makes payment in full of the aggregate Exercise Price for those
Shares in the amount of $_________________ by the delivery of certified
funds or a bank cashier's check in the amount of $_________________; or
pursuant to Section 2 of the Representative's Option Agreement ("Cashless
Exercise");
(c) requests that certificates evidencing the securities underlying
such Shares be issued in the name of the undersigned, or, if the name and
address of some other person is specified below, in the name of such other
person:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
(Name and address of person OTHER than the
undersigned in whose name Shares are to be registered)
(d) requests, if the number of Shares purchased are not all the
Shares purchasable pursuant to the unexercised portion of the Option, that
a new Option of like tenor for the remaining Shares purchasable pursuant to
the Option be issued and delivered to the undersigned at the address stated
below.
Dated:
----------------------- ---------------------------------------------
Signature
(This signature must conform in all respects
to the name of the Holder as specified on the
face of the Option.)
----------------------------- ---------------------------------------------
Social Security Number Printed Name
or Employer ID Number
Address:
---------------------------------------------
---------------------------------------------
3
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned, _____________________________, hereby
sells, assigns and transfers unto:
Name:
-------------------------------------------------
(Please type or print in block letters)
Address:
-------------------------------------------------
-------------------------------------------------
the right to purchase _________________ Shares of Premier Concepts, Inc. (the
"Company") pursuant to the terms and conditions of the Option held by the
undersigned. The undersigned hereby authorizes and directs the Company (i)
to issue and deliver to the above-named assignee at the above address a new
Option pursuant to which the rights to purchase being assigned may be
exercised, and (ii) if there are rights to purchase Shares remaining pursuant
to the undersigned's Option after the assignment contemplated herein, to
issue and deliver to the undersigned at the address stated below a new Option
evidencing the right to purchase the number of Shares remaining after
issuance and delivery of the Option to the above-named assignee. Except for
the number of Shares purchasable, the new Options to be issued and delivered
by the Company are to contain the same terms and conditions as the
undersigned's Option. To complete the assignment contemplated by this
Assignment Form, the undersigned hereby irrevocably constitutes and appoints
____________________________________ as the undersigned's attorney-in-fact to
transfer the Options and the rights thereunder on the books of the Company
with full power of substitution for these purposes.
Dated:
----------------------- ---------------------------------------------
Signature
(This signature must conform in all respects
to the name of the Holder as specified on the
face of the Option.)
----------------------------- ---------------------------------------------
Printed Name
Address:
---------------------------------------------
4
WARRANT CONVERSION EXERCISE FORM
TO: Premier Concepts, Inc.
ββββ βββββ ββββββ ββββ, βββββ βββ
ββββββ, ββββββββ βββββ
Pursuant to Section 2.4 of the Warrant Agreement, the Holder hereby
irrevocably elects to convert Warrants with respect to Shares of the Company
into __________________ Shares of the Company. A conversion calculation is
attached hereto as Exhibit B-1.
The undersigned requests that certificates for such Shares be issued as
follows:
Name:
-----------------------------------------------------------------
Address:
--------------------------------------------------------------
Deliver to:
-----------------------------------------------------------
and that a new Warrant Certificate for the balance remaining of the Warrants,
if any, subject to the Warrant be registered in the name of, and delivered
to, the undersigned at the address stated above.
Signature: Dated:
----------------------------- ---------------------
5
Exhibit B-1
CALCULATION OF WARRANT CONVERSION
Converted Securities = Net Value
---------
FMV
FMV = $
---------------------
Net Value = Aggregate FMV - Aggregate Exercise
Price
= $ -
--------------------- ---------------
= $
---------------------
Converted Shares =
---------------------
Fractional Converted Shares = (1)
---------------------
(1) Premier Concepts, Inc. to pay for fractional Shares in cash
@ $_______________ per Share.
6