SUBSCRIPTION
AGREEMENT
This
subscription agreement (this “
Subscription Agreement
”) is dated July __, 2017, by and between the investor
identified on the signature page hereto (“
Investor
”) and Long Island Iced Tea Corp., a Delaware corporation
(the “
Company
”), whereby the parties agree as follows:
1. Subscription
.
(a) Investor
agrees to buy, and the Company agrees to sell and issue to Investor, the number of shares of the Company’s common stock,
par value $0.0001 per share (the “
Common Stock
”), set forth on the signature page hereto (such shares of Common
Stock, the “
Shares
”), at a price of $____ per Share, for an aggregate purchase price as set forth on the signature
page hereto (the “
Purchase Price
”).
(b) The
Shares have been registered on the Company’s registration statement on Form S-3 (File No. 333-213874) (the “
Registration
Statement
”), which has been declared effective by the Securities and Exchange Commission (the “
Commission
”),
has remained effective since such date and is effective on the date hereof. The Shares are being issued in connection with an
offering (the “
Offering
”) to be described in a prospectus supplement, dated July 6, 2017 (the “
Prospectus
Supplement
”), to the base prospectus included in the Registration Statement, dated October 14, 2016 (the “
Base
Prospectus
,” and together with the Prospectus Supplement, the “
Prospectus
”), which will be delivered
to the Investor in accordance with Rule 172 under the Securities Act of 1933, as amended (the “
Securities Act
”).
(c) On
or before the third business day after the execution hereof (or the fourth business day if executed after 4:30 p.m. Eastern time)
(the “
Closing Date
”), in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934,
as amended (the “
Exchange Act
”), Investor will provide the Purchase Price by delivery of immediately available
funds to the account designated in writing by the Company at least one (1) business day prior to the Closing Date and, on the
Closing Date, the Company shall cause the Shares to be delivered to Investor (the “
Closing
”). The transfer
of the Shares to the Investor shall be made through the facilities of The Depository Trust Company’s DWAC system in accordance
with the instructions set forth on the signature page attached hereto under the heading “DWAC Instructions.”
2. Company
Representations and Warranties
. The Company confirms that neither it nor any other person acting on its behalf has provided
Investor or their agents or counsel with any information that constitutes or could reasonably be expected to constitute material,
nonpublic information, except as will be disclosed in the Prospectus and the Company’s press release and Form 8-K filed
with the Commission in connection with the Offering. The Company understands and confirms that Investor will rely on the foregoing
in effecting transactions in securities of the Company. In addition to and without limiting the foregoing, the Company represents
and warrants that: (a) it has full right, power and authority to enter into this Subscription Agreement and to perform all of
its obligations hereunder; (b) this Subscription Agreement has been duly authorized and executed by the Company and constitutes
a valid and binding agreement of the Company enforceable in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of creditors generally;
(c) the execution and delivery of this Subscription Agreement and the consummation of the transactions contemplated hereby do
not conflict with or result in a breach of (i) the Company’s articles of incorporation or by-laws, or (ii) any agreement
or any law or regulation to which the Company is a party or by which any of its property or assets is bound; (d) the Shares have
been duly authorized for sale and issuance, and when issued and delivered, will be validly issued, fully paid and nonassessable;
(e) the Registration Statement and any post-effective amendment thereto filed prior to the date hereof pursuant to the Securities
Act, at the time it became effective, did 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 not misleading; (f) the Base Prospectus, including information
incorporated by reference therein (except to the extent modified or superseded by a later filed document), as of their respective
dates and as of the date hereof, did not contain, and the Prospectus, including information incorporated by reference therein
(except to the extent modified or superseded by a later filed document), as of their respective dates and as of the Closing Date,
will not contain, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; and (g) all preemptive rights or rights of
first refusal held by stockholders of the Company and applicable to the transactions contemplated hereby, if any, have been duly
satisfied or waived in accordance with the terms of the agreements between the Company and such stockholders conferring such rights.
3. Investor
Representations, Warranties and Acknowledgments
. Investor represents and warrants that: (a) it has full right, power and authority
to enter into this Subscription Agreement and to perform all of its obligations hereunder; (b) this Subscription Agreement has
been duly authorized and executed by and constitutes a valid and binding agreement of Investor enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally; (c) the execution and delivery of this Subscription Agreement and the
consummation of the transactions contemplated hereby do not conflict with or result in a breach of (i) Investor’s certificate
of incorporation or by-laws (or other similar governing documents), or (ii) any material agreement or any law or regulation to
which Investor is a party or by which any of its property or assets is bound; and (d) prior to the execution hereof, Investor
has had full access to and relied only upon (i) the Base Prospectus, including information incorporated by reference therein (except
to the extent modified or superseded by a later filed document), and (iii) the pricing information communicated orally by the
Company. Investor has not relied on any other information from the Company’s officers, directors or agents, and confirms
that none of such persons has made any representations or warranties to Investor or its agents in connection with the Offering
or the Company. Investor further acknowledges that other investors (“
Other Investors
”) are concurrently entering
into subscription agreements in substantially the same form as this Subscription Agreement as part of the Offering.
4. Company
Covenants
. If this Subscription Agreement is executed by the parties hereto outside the regular trading hours of the financial
markets in New York City, the Company and Investor agree that the Company shall, prior to the next opening of the financial markets
in New York City, issue a press release announcing the Offering and disclosing all material information regarding the Offering,
if reasonably feasible. If this Subscription Agreement is executed by the parties hereto during the regular trading hours of the
financial markets in New York City, such press release shall be issued prior to the close of the financial markets on the date
hereof, if reasonably feasible.
5. Conditions
to the Company’s Obligations
. The Company’s obligation to issue and sell the Shares to Investor shall be subject
to: (a) the receipt by the Company of the Purchase Price for the Shares being purchased hereunder as set forth on the signature
page hereto and (b) the accuracy in all material respects of the representations and warranties made by Investor and the fulfillment
of those undertakings of Investor to be fulfilled prior to the Closing Date.
6. Conditions
to Investor’s Obligations
. Investor’s obligation to purchase the Shares will be subject to the accuracy in all
material respects of the representations and warranties made by the Company and the fulfillment of those undertakings of the Company
to be fulfilled prior to the Closing Date. Investor’s obligations are not conditioned on the purchase of Shares by the Other
Investors in the Offering.
7. Miscellaneous
.
(a) The
Company has the right to reject this subscription, in whole or in part, for any reason and at any time prior to the Closing. In
the event of the rejection of this subscription, the Purchase Price will be promptly returned to Investor without interest or
deduction and this Subscription Agreement shall have no force or effect. The Shares subscribed for herein will not be deemed issued
to or owned by Investor until one copy of this Subscription Agreement has been executed by the Investor and countersigned by the
Company and the Closing with respect to the Investor’s subscription has occurred.
(b) Except
as otherwise provided herein, this Subscription Agreement constitutes the entire understanding and agreement between the parties
with respect to its subject matter and there are no agreements or understandings with respect to the subject matter hereof which
are not contained in this Subscription Agreement. This Subscription Agreement may be modified only in writing signed by the parties
hereto.
(c) This
Subscription Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the
same instrument and shall become effective when counterparts have been signed by each party and delivered to the other parties
hereto, it being understood that all parties need not sign the same counterpart. Execution may be made by delivery by facsimile
or PDF.
(d) The
provisions of this Subscription Agreement are severable and, in the event that any court or officials of any regulatory agency
of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Subscription
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of this Subscription Agreement and this Subscription
Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision,
had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible,
so long as such construction does not materially adversely effect the economic rights of either party hereto.
(e) All
communications hereunder shall be in writing and shall be mailed, hand delivered, sent by a recognized overnight courier service
such as Federal Express, or sent via facsimile or electronic mail, to the party to whom it is addressed at the following addresses
or such other address as such party may advise the other in writing:
To
the Company: as set forth on the signature page hereto.
To
Investor: as set forth on the signature page hereto.
All
notices hereunder shall be effective upon receipt by the party to which it is addressed.
(f) This
Agreement shall be governed by and interpreted in accordance with the laws of the State of New York for contracts to be wholly
performed in such state and without giving effect to the principles thereof regarding the conflict of laws. To the extent determined
by such court, the prevailing party shall reimburse the other party for any reasonable legal fees and disbursements incurred in
enforcement of, or protection of, any of its rights under this Agreement.
[
Signature
Page Follows
]
If
the foregoing correctly sets forth our agreement, please confirm this by signing and returning to us the duplicate copy of this
letter.
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COMPANY:
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INVESTOR:
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LONG ISLAND
ICED TEA CORP.
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(name)
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By:
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Name:
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Philip Thomas
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(signature)
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Title:
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Chief Executive Officer
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Address
for Notice:
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(name
of signatory, if Investor is an entity)
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Long Island
Iced Tea Corp.
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116 Charlotte
Ave.
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(title
of signatory, if Investor is an entity)
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Hicksville,
NY 11801
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Fax:
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Address for Notice:
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E-mail:
pthomas@longislandteas.com
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Attn:
Philip Thomas
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With a
copy to:
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Graubard
Miller
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Fax:
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405 Lexington Avenue
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New York, NY 10174
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E-mail:
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Facsimile: (888) 818-8881
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E-mail: jgallant@graubard.com
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Attn:
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Attn: Jeffrey M. Gallant
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Number
of Shares:
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Total Purchase Price:
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$
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Check
one of the following:
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[ ] Deliver
by DWAC:
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(Name
of DTC Participant)
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The
sale of the Shares is being made pursuant to
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a
registration statement under the Securities Act.
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(DTC
Participant Number)
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A
final prospectus relating to the sale of the
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Shares
will be filed with the Commission and
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will
be available on the Commission’s website
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(Account
Number)
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at
www.sec.gov.
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[ ]
Deliver by physical certificate
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[
Signature
Page to Subscription Agreement
]
THE
REGISTERED HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS WARRANT EXCEPT
AS HEREIN PROVIDED.
VOID
AFTER 5:00 P.M. EASTERN TIME, JULY ______, 2020
WARRANT
for
the Purchase of
__________
Shares of Common Stock
of
LONG
ISLAND ICED TEA CORP.
1.
Warrant
.
THIS
CERTIFIES THAT, for good and valuable consideration, duly paid by or on behalf of _______________ (the “
Holder
”),
as registered owner of this Warrant, to Long Island Iced Tea Corp. (the “
Company
”), Holder is entitled, at
any time or from time to time at or after July ____, 2017 (the “
Commencement Date
”), and at or before 5:00
p.m., Eastern Time July _____, 2020 (the “
Expiration Date
”), but not thereafter, to subscribe for, purchase
and receive, in whole or in part, up to __________ (__________) shares of Common Stock of the Company, $0.0001 par value (“
Common
Stock
”). If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Warrant
may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending
on the Expiration Date, the Company agrees not to take any action that would terminate the Warrant. This Warrant is initially
exercisable at $5.50 per share of Common Stock purchased; provided, however, that upon the occurrence of any of the events specified
in Section 6 hereof, the rights granted by this Warrant, including the exercise price and the number of shares of Common Stock
to be received upon such exercise, shall be adjusted as therein specified. The term “
Exercise Price
” shall
mean the initial exercise price or the adjusted exercise price, depending on the context, of a share of Common Stock. The terms
“
Securities
” or “
Warrant Shares
” shall mean the shares of Common Stock issuable upon exercise
of this Warrant.
2.
Exercise
.
2.1.
Exercise Form
. In order to exercise this Warrant, the exercise form attached hereto must be duly executed and completed
and delivered to the Company, together with this Warrant and, unless Holder elects to exercise this Warrant on “cashless”
basis pursuant to Section 2.2 by so specifying in the exercise form, payment in cash of the Exercise Price for the Securities
being purchased. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on
the Expiration Date, this Warrant shall become and be void without further force or effect, and all rights represented hereby
shall cease and expire. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the
provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares
available for purchase hereunder at any given time may be less than the amount stated on the face hereof. Under no circumstances
will the Company be required to net cash settle this Warrant upon its exercise.
2.2.
Cashless Exercise
. In lieu of paying cash pursuant to Section 2.1 above, Holder may elect to exercise this Warrant on a
“cashless” basis and receive the number of Shares equal to the value of this Warrant (or the portion thereof being
exercised), in which event the Company shall issue Shares to Holder in accordance with the following formula:
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X
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=
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Y
* (A - B) / A
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where:
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X
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=
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the
number of Shares to be issued to Holder;
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Y
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=
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the
number of Shares for which the Warrant is being exercised;
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A
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=
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the
fair market value of one Share; and
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B
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=
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the
Exercise Price.
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For
purposes of this Section 2.2, the fair market value of a Share shall be the average VWAP per share of Common Stock (as reported
by Bloomberg) for the ten trading days immediately preceding the date of exercise; provided, however, if there is no active public
market, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors.
“
VWAP
” shall mean, for any date, the price determined by the first of the following clauses that applies: (a)
if the Common Stock is then listed or quoted on a national securities exchange, the daily volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the exchange on which the Common Stock is then listed or quoted
as reported by Bloomberg L.P. (based on a trading day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)),
or (b) if the Common Stock is not then listed or quoted for trading on a national securities exchange and if prices for the Common
Stock are then reported by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices),
the closing bid price per share of the Common Stock so reported.
2.3.
Delivery of Certificates Upon Exercise
. Shares of Common Stock purchased hereunder shall be transmitted by the Company’s
transfer agent to the Holder by crediting the account of the Holder’s prime broker with the Depository Trust Company (“
DTC
”)
through its Deposit Withdrawal Agent Commission (“
DWAC
”) system if the Company is then a participant in such
system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to Holder or
(B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate to the address
specified by the Holder in the Notice of Exercise by the date that is three (3) Trading Days after the latest of (x) the delivery
to the Company of the Notice of Exercise Form, (y) surrender of this Warrant (if required) and (z) payment of the aggregate Exercise
Price as set forth above (including by cashless exercise, if permitted) and all taxes required to be paid by the Holder, if any,
pursuant to Section 2(d)(vi) prior to the issuance of such shares, having been paid (such date, the “
Warrant Share Delivery
Date
”). This Warrant shall be deemed to have been exercised on the first date on which all of the foregoing have been
delivered to the Company. The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated
to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Warrant
has been exercised, with payment to the Company of the Exercise Price (or by cashless exercise, if permitted) and all taxes required
to be paid by the Holder, if any, pursuant to Section 2(d)(vi) prior to the issuance of such shares, having been paid.
2.4.
Legend
. Each certificate for Securities purchased under this Warrant shall bear a legend as follows, unless such Securities
have been registered under the Securities Act of 1933, as amended (“
Act
”):
“The
securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (“Act”)
or applicable state law. The securities may not be offered for sale, sold or otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an exemption from registration under the Act and applicable state law.”
3.
Transfer
.
3.1.
General Restrictions
. The registered Holder of this Warrant, by its acceptance hereof, agrees that it will not sell, transfer
or assign or hypothecate this Warrant to anyone except upon compliance with, or pursuant to exemptions from, applicable securities
laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly
executed and completed, together with this Warrant and payment of all transfer taxes, if any, payable in connection therewith.
The Company shall immediately transfer this Warrant on the books of the Company and shall execute and deliver a new Warrant or
Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of shares
of Common Stock purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2.
Restrictions Imposed by the Securities Act
. This Warrant and the Securities shall not be transferred unless and until (i)
the Company has received the opinion of counsel for the Holder that this Warrant and the Securities may be sold pursuant to an
exemption from registration under the Act, and applicable state law, the availability of which is established to the reasonable
satisfaction of the Company, or (ii) a registration statement relating to this Warrant and the Securities has been filed by the
Company and declared effective by the Securities and Exchange Commission (the “
Commission
”) and compliance
with applicable state law.
4.
New Warrants to be Issued
.
4.1.
Partial Exercise or Transfer
. Subject to the restrictions in Section 3 hereof, this Warrant may be exercised or assigned
in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Warrant for cancellation,
together with the duly executed exercise or assignment form and funds (or conversion equivalent) sufficient to pay any Exercise
Price and/or transfer tax, the Company shall cause to be delivered to the Holder without charge a new Warrant of like tenor to
this Warrant in the name of the Holder evidencing the right of the Holder to purchase the aggregate number of shares of Common
Stock and Warrants purchasable hereunder as to which this Warrant has not been exercised or assigned.
4.2.
Lost Certificate
. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant and of reasonably satisfactory indemnification, the Company shall execute and deliver a new Warrant of like tenor
and date. Any such new Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute
a substitute contractual obligation on the part of the Company.
5.
Adjustments
5.1.
Adjustments to Exercise Price and Number of Securities
. The Exercise Price and the Securities underlying this Warrant shall
be subject to adjustment from time to time as hereinafter set forth:
5.1.1.
Stock Dividends, Recapitalization, Reclassification, Split-Ups
. If, after the date hereof, and subject to the provisions
of Section 5.2 below, the number of outstanding shares of Common Stock is increased by a stock dividend on the Common Stock payable
in shares of Common Stock or by a split-up, recapitalization or reclassification of shares of Common Stock or other similar event,
then, on the effective date thereof, the number of shares of Common Stock issuable on exercise of this Warrant shall be increased
in proportion to such increase in outstanding shares.
5.1.2.
Aggregation of Shares
. If after the date hereof, and subject to the provisions of Section 5.2, the number of outstanding
shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar
event, then, upon the effective date thereof, the number of shares of Common Stock issuable on exercise of this Warrant shall
be decreased in proportion to such decrease in outstanding shares.
5.1.3.
Adjustments in Exercise Price
. Whenever the number of shares of Common Stock purchasable upon the exercise of this Warrant
is adjusted, as provided in this Section 5.1, the Exercise Price shall be adjusted (to the nearest cent) by multiplying such Exercise
Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock
purchasable upon the exercise of this Warrant immediately prior to such adjustment, and (y) the denominator of which shall be
the number of shares of Common Stock so purchasable immediately thereafter.
5.1.4.
Replacement of Securities upon Reorganization, Etc
. In case of any reclassification or reorganization of the outstanding
shares of Common Stock other than a change covered by Sections 5.1.1 or 5.1.2 hereof or which solely affects the par value of
such shares of Common Stock, or in the case of any merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing corporation and which does not result in any reclassification
or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation
or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Warrant shall have the right thereafter (until the expiration of the right of exercise of this Warrant)
to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event,
the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any such sale or other transfer, by a Holder of the number
of shares of Common Stock of the Company obtainable upon exercise of this Warrant immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered by Sections 5.1.1 or 5.1.2, then such adjustment shall
be made pursuant to Sections 5.1.1, 5.1.2, 5.1.3 and this Section 5.1.4. The provisions of this Section 5.1.4 shall similarly
apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
5.1.5.
Changes in Form of Warrant
. This form of Warrant need not be changed because of any change pursuant to this Section, and
Warrants in this form issued in connection with a transfer or exercise of a Warrant after such change may state the same Exercise
Price and the same number of shares of Common Stock as are stated in the Warrants initially issued. The acceptance by any Holder
of the issuance of new Warrants reflecting a required or permissive change shall not be deemed to waive any rights to a prior
adjustment or the computation thereof.
5.2.
Elimination of Fractional Interests
. The Company shall not be required to issue certificates representing fractions of
shares of Common Stock upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional
interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities, properties or rights.
6.
Reservation and Listing
.
The
Company shall at all times reserve and keep available out of its authorized shares of Common Stock, solely for the purpose of
issuance upon exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall
be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all shares of Common Stock issuable upon exercise of the Warrants
to be listed (subject to official notice of issuance) on all securities exchanges (or, if applicable on Nasdaq) on which the Common
Stock is then listed and/or quoted.
7.
Certain Notice Requirements
.
7.1.
Holder’s Right to Receive Notice
. Nothing herein shall be construed as conferring upon the Holder the right to vote
or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever
as a stockholder of the Company. If, however, at any time prior to the expiration of the Warrants and their exercise, any of the
events described in Section 7.2 shall occur, then, in one or more of said events, the Company shall give written notice of such
event at least fifteen days prior to the date fixed as a record date or the date of closing the transfer books for the determination
of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date
of the closing of the transfer books, as the case may be.
7.2.
Events Requiring Notice
. The Company shall be required to give the notice described in this Section 7 upon one or more
of the following events: (i) if the Company shall take a record of the holders of its shares of Common Stock for the purpose of
entitling them to receive a dividend or distribution, or (ii) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of
the Company, or any option, right or warrant to subscribe therefor, or (iii) a merger or reorganization in which the Company is
not the surviving party, or (iv) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation
or merger) or a sale of all or substantially all of its property, assets and business shall be proposed.
7.3.
Notice of Change in Exercise Price
. The Company shall, promptly after an event requiring a change in the Exercise Price
pursuant to Section 5 hereof, send notice to the Holder of such event and change (“
Price Notice
”). The Price
Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and
accurate by the Company’s Chief Financial Officer.
7.4.
Transmittal of Notices
. All notices, requests, consents and other communications under this Warrant shall be in writing
and shall be deemed to have been duly made on the date of delivery if delivered personally or sent by overnight courier, with
acknowledgment of receipt by the party to which notice is given, or on the fifth day after mailing if mailed to the party to whom
notice is to be given, by registered or certified mail, return receipt requested, postage prepaid and properly addressed as follows:
(i) if to the registered Holder of this Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if
to the Company, to its principal executive office.
8.
Miscellaneous
.
8.1.
No Rights as Stockholder Until Exercise
. This Warrant does not entitle the Holder to any voting rights, dividends or other
rights as a stockholder of the Company prior to the exercise hereof.
8.2.
Headings
. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way
limit or affect the meaning or interpretation of any of the terms or provisions of this Warrant.
8.3.
Entire Agreement
. This Warrant (together with the other agreements and documents being delivered pursuant to or in connection
with this Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
8.4.
Binding Effect
. This Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company
and their respective successors, legal representatives and assigns, and no other person shall have or be construed to have any
legal or equitable right, remedy or claim under or in respect of or by virtue of this Warrant or any provisions herein contained.
8.5.
Governing Law; Submission to Jurisdiction
. This Warrant shall be governed by and construed and enforced in accordance with
the law of the State of New York, without giving effect to conflict of laws. The Company hereby agrees that any action, proceeding
or claim against it arising out of, or relating in any way to this Warrant shall be brought and enforced in the courts of the
State of New York or of the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any process or summons to be served upon the Company may be served by transmitting a copy thereof
by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section
8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies)
all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with
the preparation therefor.
8.6.
Waiver, Etc
. The failure of the Company or the Holder to at any time enforce any of the provisions of this Warrant shall
not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Warrant or any
provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Warrant shall be effective unless set
forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and
no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent
breach, non-compliance or non-fulfillment.
[
Signature
Page Follows
]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer as of the _____ day of July,
2017.
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LONG
ISLAND ICED TEA CORP.
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By:
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Name:
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Title:
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WARRANT
EXERCISE FORM
Date:
_____________________
Long
Island Iced Tea Corp.
116
Charlotte Avenue
Hicksville,
New York 11801
Ladies
and Gentlemen:
[The
undersigned hereby elects irrevocably to exercise the within Warrant and to purchase ________ shares of Common Stock of Long Island
Iced Tea Corp. and hereby makes payment of $____________ (at the rate of $_________ per share of Common Stock) in payment of the
Exercise Price pursuant thereto. Please issue the Common Stock in accordance with the instructions given below.]
[or]
[The
undersigned hereby elects irrevocably to exercise the within Warrant as to ________ shares of Common Stock of Long Island Iced
Tea Corp., on a “cashless” basis, and to receive _________ shares of Common Stock, equal to the value of such Warrant
as of the date hereof, pursuant to and in accordance with Section 2. Please issue the Common Stock in accordance with the instructions
given below.]
The
undersigned represents and warrants that (i) it is an “accredited investor” as defined under the Act and the rules
and regulations thereunder, (ii) it has been advised that the Securities have not been registered under the Act, and cannot be
resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Act and under applicable
state laws, or an exemption from such registration is available, and that the certificate representing the Securities will bear
a restrictive legend relating to such restrictions, (iii) it is acquiring the Securities for its own account for investment purposes
only and not with a view to, or for sale in connection with, any subsequent distribution of the securities, and it has no present
intention of selling or otherwise disposing of the Securities in violation of the securities laws of the United States, and (iv)
it is familiar with the proposed business, management, financial condition and affairs of the Company, it has had both the opportunity
to ask questions of and receive answers from the officers and directors of the Company and all persons acting on its behalf concerning
the terms and conditions of the offer made hereunder and has obtained, in its judgment, sufficient information from the Company
to evaluate the merits and risks of an investment in the Company. Capitalized terms have the meanings ascribed to them in the
within Warrant.
NOTICE:
The signature to this form must correspond with the name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust
company or by a firm having membership on a registered national securities exchange.
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
(Print
in Block Letters)
ASSIGNMENT
FORM
FOR
VALUE RECEIVED, ________________________________ does hereby sell, assign and transfer unto _________________________________
the right to purchase _______________ shares of Common Stock of Long Island Iced Tea Corp. (“Company”) evidenced by
the within Warrant and does hereby authorize the Company to transfer such right on the books of the Company.
NOTICE:
The signature to this form must correspond with the name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust
company or by a firm having membership on a registered national securities exchange.
July
6, 2017
Long
Island Iced Tea Corp.
116
Charlotte Avenue
Hicksville,
NY 11801
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Re:
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Long
Island Iced Tea Corp.
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Ladies
and Gentlemen:
We
have acted as counsel for Long Island Iced Tea Corp., a Delaware corporation (“
Company
”), in connection with
the preparation of the registration statement on Form S-3 (File No. 333-213874), filed by the Company with the Securities and
Exchange Commission (“
Commission
”) under the Securities Act of 1933, as amended (the “
Act
”),
which was declared effective on October 14, 2016, including the base prospectus included therein, and the prospectus supplement
thereto, dated July 6, 2017 (the “
Prospectus Supplement
”), to be filed pursuant to Rule 424(b) promulgated
under the Act, relating to the issuance and/or sale by the Company of an aggregate of 462,160 shares (the “
Shares
”)
of common stock, par value $0.0001 per share (“
Common Stock
”), and 40,000 warrants (the “
Warrants
”)
to purchase an aggregate of 40,000 shares of Common Stock (the “
Warrant Shares
”), in a “best efforts”
offering through a placement agent (the “
Offering
”). The Shares and Warrants to be sold as described in the
Registration Statement and the related Prospectus Supplement, pursuant to a subscription agreement with each purchaser in the
Offering (the “
Subscription Agreements
”).
In
rendering the opinion set forth below, we have examined (a) the Prospectus Supplement; (b) the Registration Statement and the
exhibits thereto; (c) the form of Subscription Agreement; (d) the Company’s Amended and Restated Certificate of Incorporation;
(e) the Company’s Bylaws; (f) certain records of the Company’s corporate proceedings as reflected in its minute books;
and (g) such statutes, records and other documents as we have deemed relevant.
In
our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
and conformity with the originals of all documents submitted to us as copies thereof. In addition, we have made such other examinations
of law and fact as we have deemed relevant in order to form a basis for the opinions hereinafter expressed.
Long
Island Iced Tea Corp.
July
6, 2017
Page
2
Based
upon and subject to the foregoing, we are of the opinion that:
1.
The Shares, when sold and issued in accordance with the Prospectus Supplement and Subscription Agreements, against payment
therefor, will be duly authorized, validly issued, fully paid and non-assessable.
2.
The Warrants, when issued in accordance with the Prospectus Supplement, constitute legal, valid and binding obligations of
the Company, enforceable against it in accordance with their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’
rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
3.
The Warrant Shares, when sold and issued in accordance with the Prospectus Supplement, and in accordance with the terms of
the Warrants, against payment therefor, will be duly authorized, validly issued, fully paid and non-assessable.
No
opinion is expressed herein other than as to the law of the State of New York, the corporate law of the State of Delaware and
the federal law of the United States of America.
We
hereby consent to the use of this opinion as an exhibit to the Registration Statements, to the use of our name as counsel to the
Company, and to all references made to us in the Registration Statements and the prospectuses forming a part thereof. In giving
this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
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Very
truly yours,
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/s/
Graubard Miller
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Long
Island Iced Tea Corp. Announces Public Offering of Common Stock
Hicksville,
NY (July 7, 2017)
— Long Island Iced Tea Corp. (NasdaqCM: LTEA) (the “Company”), a growth-oriented company
focused on the ready-to-drink (“RTD”) tea segment in the beverage industry, today announced the signing of subscription
agreements for a public offering of 448,160 shares of its common stock at a public offering price of $5.00 per share. Alexander
Capital, L.P. acted as the placement agent for the offering on a “best efforts” basis. The offering is expected to
close on July 12, 2017.
The
offering was made pursuant to an effective shelf registration statement on Form S-3 previously filed with and subsequently declared
effective by the Securities and Exchange Commission (the “SEC”). A prospectus supplement relating to the offering
is being filed with the Securities and Exchange Commission. Copies of the prospectus supplement relating to the offering, together
with the accompanying base prospectus included in the registration statement, may be obtained from the Securities and Exchange
Commission at http://www.sec.gov, or from Alexander Capital, L.P., 17 State Street, 5th Floor, New York, NY 10004 – Attention:
Tim Stack, Telephone: (212) 687-5650.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, these
securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration
or qualification under the securities laws of any such state or jurisdiction.
About
Long Island Iced Tea Corp.
Headquartered
in Long Island, New York, Long Island Iced Tea Corp. operates in the ready-to-drink tea segment of the beverage industry. The
Company has developed non-alcoholic, premium iced tea bottled beverages made with quality ingredients that are offered at an affordable
price. The Company is currently organized around its flagship brand Long Island Iced Tea
®
, a premium, ready-to-drink
iced tea sold primarily on the East Coast of the United States through a network of regional chains and distributors.
Forward
Looking Statements
This
press release includes statements of the Company’s expectations, intentions, plans and beliefs that constitute “forward
looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934 and are intended to come within the safe harbor protection provided by those sections. These statements, which involve
risks and uncertainties, relate to the discussion of the Company’s business strategies and its expectations concerning future
operations, margins, sales, new products and brands, potential joint ventures, potential acquisitions, expenses, profitability,
liquidity and capital resources and to analyses and other information that are based on forecasts of future results and estimates
of amounts not yet determinable. These statements include any statement that does not directly relate to a historical or current
fact. You can also identify these and other forward-looking statements by the use of such words as “may,” “will,”
“should,” “expects,” “intends,” “plans,” “anticipates,” “believes,”
“thinks,” “estimates,” “seeks,” “predicts,” “could,” “projects,”
“potential” and other similar terms and phrases, including references to assumptions. These forward looking statements
are made based on expectations and beliefs concerning future events affecting the Company and are subject to uncertainties, risks
and other factors relating to its operations and business environments, all of which are difficult to predict and many of which
are beyond its control, that could cause its actual results to differ materially from those matters expressed or implied by these
forward looking statements. These uncertainties, risks and other factors include the risk that the offering will not close. These
uncertainties, risks and other factors also include the Company’s history of losses and expectation of further losses, its
ability to expand its operations in both new and existing markets, its ability to develop or acquire new brands, its relationships
with distributors, the success of its marketing activities, the effect of competition in its industry and economic and political
conditions generally, including the current economic environment and markets. More information about these and other factors are
described in the reports the Company files with the Securities and Exchange Commission, including but not limited to the discussions
contained under the caption “Risk Factors.” When considering these forward looking statements, you should keep in
mind the cautionary statements in this press release and the reports the Company files with the Securities and Exchange Commission.
New risks and uncertainties arise from time to time, and the Company cannot predict those events or how they may affect it. The
Company assumes no obligation to update any forward looking statements after the date of this press release as a result of new
information, future events or developments, except as required by the federal securities laws.
Contacts:
Phil
Thomas
Long
Island Iced Tea Corp.
1-855-542-2832
info@longislandteas.com