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Exhibit 1.2
EXHIBIT B TO
UNDERWRITING AGREEMENT
THE SECURITY EVIDENCED HEREBY MAY NOT BE TRANSFERRED EXCEPT (I) IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 1 HEREOF AND (II) WITH EITHER (A)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER MAY BE
LAWFULLY MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 OR (B) SUCH
REGISTRATION.
COMMON STOCK WARRANT
To Purchase 100,000
Shares of Common Stock of
Ciao Cucina Corporation
, 1996
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THIS CERTIFIES THAT, in consideration for its payment of $50.00 to the
Company, The ▇▇▇▇▇▇ Capital Corporation ("Initial Holder") or its registered
assigns is entitled to subscribe for and purchase from Ciao Cucina Corporation
(herein called the "Company"), an Ohio corporation, at any time after the first
anniversary of the date hereof (which is the effective date of the registration
statement to which this Warrant relates) to and including __________, 2001 (the
fifth anniversary of the effective date of the registration statement for the
public offering to which this Warrant relates), 100,000 fully paid and
nonassessable shares of the Company's Common Stock without par value at a price
per share of $__________ (which price is equal to 120% of the price of the
Company's Common Stock offered in the public offering to which this Warrant
relates).
This Warrant is subject to the following provisions, terms and conditions:
1. EXERCISE; TRANSFERABILITY. The rights represented by this Warrant
may be exercised by the holder hereof, in whole or in part (but not as to a
fractional share of common stock), by written notice of exercise delivered to
the Company 20 days prior to the intended date of exercise and by the surrender
of this Warrant (properly endorsed if required) at the principal office of the
Company and upon payment to it by check of the purchase price for such shares.
This Warrant may be transferred, or divided into two or more Warrants of
smaller denominations (collectively, the "Warrants"), subject to the following
conditions: (i) during the first year after the date hereof, the Warrant may
not be exercised, sold, transferred, assigned or hypothecated, and (ii) after
such period, the Warrant shall be transferable only to officers and employees
of the Initial Holder, subject to the Company's receipt of the opinion of
counsel as provided by paragraph 7 herein to the effect that such transfer is
not in violation of federal or state securities laws.
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2. ISSUANCE OF SHARES. The Company agrees that the shares purchasable
hereunder shall be and are deemed to be issued to the record holder hereof as
of the close of business on the date on which this Warrant shall have been
surrendered and the payment made for such shares as aforesaid. Subject to the
provisions of the next succeeding paragraph, certificates for the shares of
stock so purchased shall be delivered to the holder hereof within a reasonable
time, not exceeding ten days after the rights represented by this Warrant shall
have been so exercised, and, unless this Warrant has expired, a new Warrant
representing the number of shares, if any, with respect to which this Warrant
shall not then have been exercised shall also be delivered to the holder hereof
within such time. Notwithstanding the foregoing, however, the Company shall not
be required to deliver any certificate for shares of stock upon exercise of
this Warrant, except in accordance with the provisions, and subject to the
limitations, of paragraph 7 hereof.
3. COVENANTS OF COMPANY. The Company covenants and agrees that all
shares which may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be duly authorized and issued, fully paid,
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof, and, without limiting the generality of the foregoing, the
Company covenants and agrees that it will from time to time take all such
action as may be required to assure that the par value per share of common
stock is at all times equal to or less than the then effective purchase price
per share of the common stock issuable pursuant to this Warrant. The Company
further covenants and agrees that, during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of issue or transfer upon
exercise of the subscription rights evidenced by this Warrant, a sufficient
number of shares of its common stock to provide for the exercise of the rights
represented by this Warrant.
4. ANTI-DILUTION ADJUSTMENTS. The above provisions are, however,
subject to the following:
(a) In case the Company shall at any time hereafter subdivide or
combine the outstanding shares of common stock or declare a dividend payable in
common stock, the exercise price of this Warrant in effect immediately prior to
the subdivision, combination or record date for such dividend payable in common
stock shall forthwith be proportionately increased, in the case of combination,
or decreased, in the case of subdivision or dividend payable in common stock,
and each share of common stock purchasable upon exercise of this Warrant shall
be changed to the number determined by dividing the then current exercise price
by the exercise price as adjusted after the subdivision, combination or
dividend payable in common stock.
(b) No fractional shares of common stock are to be issued upon the
exercise of this Warrant, but the Company shall pay a cash adjustment in
respect of any fraction of a share which would otherwise be issuable in an
amount equal to the same fraction of the market price per share of common stock
on the day of exercise as determined in good faith by the Company.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of common stock shall
be entitled to receive stock, securities or assets with respect to or in
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exchange for common stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holder hereof shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of common stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby, such stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such common stock equal to the number of shares of such stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and interests of the holder
of this Warrant to the end that the provisions hereof (including without
limitation provisions for adjustments of the Warrant purchase price and of the
number of shares purchasable upon the exercise of this Warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise hereof.
The Company shall not effect any such consolidation, merger or sale unless
prior to the consummation thereof the successor corporation (if other than the
Company) resulting from such consolidation or merger, or the corporation
purchasing such assets, shall assume by written instrument executed and mailed
to the registered holder hereof at the last address of such holder appearing on
the books of the Company, the obligation to deliver to such holder such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase.
(d) Upon any adjustment of the Warrant purchase price, then, and in
each such case, the Company shall give written notice thereof, by first class
mail, postage prepaid, addressed to the registered holder of this Warrant at
the address of such holder as shown on the books of the Company, which notice
shall state the Warrant purchase price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
5. COMMON STOCK. As used herein, the term "common stock" shall mean
and include the Company's presently authorized shares of common stock and shall
also include any capital stock of any class of the Company hereafter authorized
which shall not be limited to fixed sum or percentage in respect of the rights
of the holders thereof to participate in dividends or in the distribution,
dissolution or winding up of the Company.
6. NO VOTING RIGHTS. This Warrant shall not entitle the holder hereof
to any voting rights or other rights as a shareholder of the Company.
7. NOTICE OF TRANSFER OF WARRANT OR RESALE OF SHARES. The holder of
this Warrant, by acceptance hereof, agrees to give written notice to the
Company before transferring any common stock issued upon the exercise hereof
("Warrant Shares"), of such holder's intention to do so, describing briefly the
manner of any proposed transfer. Promptly upon receiving such written notice,
the Company shall present copies thereof to the Company's counsel and to
counsel
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to the original purchaser of this Warrant. If in the opinion of each such
counsel the proposed transfer may be effected without registration or
qualification (under any federal or state law), the Company, as promptly as
practicable, shall notify such holder of such opinions, whereupon such holder
shall be entitled to transfer the Warrant Shares or to dispose of shares of
common stock received upon the previous exercise hereof in accordance with the
notice delivered by such holder to the Company, provided that an appropriate
legend may be endorsed on this Warrant or the certificates for such Warrant
Shares respecting restrictions upon transfer thereof necessary or advisable in
the opinion of counsel satisfactory to the Company to prevent further transfers
which would be in violation of Section 5 of the Securities Act of 1933.
If, in the reasonable opinion of either of the counsel referred to in
this paragraph 7, the proposed transfer or disposition described in the written
notice given pursuant to this paragraph 7 may not be effected without
registration or qualification of the Warrant Shares, the Company shall promptly
give written notice thereof to the holder hereof, and such holder will limit
its activities in respect to such proposed transfer or disposition as, in the
opinion of both such counsel, are permitted by law.
8. REGISTRATION RIGHTS. (a) If the Company proposes to claim an
exemption under Section 3(b) for a public offering of any of its securities or
to register under the Securities Act of 1933 (except by a registration
statement on a form that does not permit the inclusion of shares by its
security holders) any of its securities, it will give written notice to all
registered holders of Warrants, and all registered holders of shares of common
stock acquired upon the exercise of Warrants, of its intention to do so and, on
the written request of any registered holders given within 20 days after
receipt of any such notice (which request must be made on or before , 2003 (the
seventh anniversary of the effective date of the registration statement for the
public offering to which this Warrant relates) and which notice shall specify
the Warrant Shares intended to be sold or disposed of by such registered holder
and describe the nature of any proposed sale or other disposition thereof), the
Company will use its best efforts to cause all such Warrant Shares, the
registered holders of which shall have requested the registration or
qualification thereof, to be included in such notification or registration
statement proposed to be filed by the Company. All expenses of such offering,
except the fees of special counsel and brokers' commissions to such holders,
shall be borne by the Company.
(b) Further, on a one-time basis only, upon request by a majority in
interest of Warrants, or by the holders of a majority of the shares of the
common stock issued upon exercise thereof, the Company will, at the expense of
such holders, promptly take all necessary steps to register or qualify the
Warrant Shares under Section 3(b) or Section 5 of the Securities Act of 1933
and such state laws as such holders may reasonably request; provided that such
request must be made within five years from the effective date of the
registration statement filed with the Securities and Exchange Commission with
respect to the offering to which this Warrant relates. The Company shall keep
effective and maintain any registration, qualification, notification or
approval specified in this paragraph for such period as may be necessary for
the holders of the Warrant Shares to dispose of such shares and from time to
time shall amend or supplement, at the holder's expense, the prospectus, or
offering circular used in connection therewith to the
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extent necessary in order to comply with applicable law, provided that the
Company shall not be obligated to maintain any registration for a period of
more than six months after effectiveness except that a Form S-3 Registration
Statement or successor thereof shall be maintained for up to 12 months after
effectiveness.
(c) The Company shall indemnify the holder of this Warrant and of any
common stock issued or issuable hereunder, its officers and directors, and any
person who controls such Warrant holder or such holder of common stock within
the meaning of Section 15 of the Securities Act of 1933, against all losses,
claims, damages and liabilities caused by any untrue statement of a material
fact contained in any registration statement, prospectus, notification or
offering circular (and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus
relating to the registration or qualification of the Warrant Shares or caused
by any omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission contained in information furnished in writing to the Company by
such Warrant holder or such holder of Warrant Shares expressly for use therein,
and each such holder by its acceptance hereof severally agrees that it will
indemnify and hold harmless the Company and each of its officers who signs such
registration statement and each of its directors and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act of
1933 with respect to losses, claims, damages or liabilities which are caused by
any untrue statement or omission contained in information furnished in writing
to the Company by such holder expressly for use therein.
IN WITNESS WHEREOF, Ciao Cucina Corporation has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated as of
__________, 1996.
CIAO CUCINA CORPORATION
By_________________________________
Its______________________________
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CIAO CUCINA CORPORATION
TO:________________________________
PURCHASE FORM -- To be executed by the Registered Holder in Order to Exercise
the Warrant.
The undersigned hereby irrevocably elects to exercise the attached Warrant
Certificate to purchase, for cash, _________________ of the shares issuable
upon the exercise of such Warrant, and requests that certificates for such
shares shall be issued in the name of:
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(Name)
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(Address)
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(Tax ID No.)
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(Signature)
ASSIGNMENT FORM -- To be Executed By the Registered Holder in Order to Transfer
the Warrant.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers _____
of the Warrants represented by the attached Warrant Certificate unto
__________________________________________________ (please print or typewrite
name and address including postal zip code of assignee) having the Social
Security or other identifying number of ________________, and does irrevocably
constitute and appoint ________________________ attorney to transfer the
Warrant Certificate on the records of the Company with full power of
substitution in the premises.
Date:__________________, 19____.
PLEASE NOTE: The signature(s) to the Purchase Form or the Assignment
Form must correspond to the name as written upon the face of the
Warrant Certificate in every particular without alteration or
enlargement or any change whatsoever.
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EXERCISE NOTICE
The undersigned Warrant holder hereby irrevocably elects to exercise the
attached Warrant Certificate by exercising the conversion rights of Section 9 of
the Warrant. The Warrant is hereby exercised for _____________________ shares
and is accompanied by a check in the amount of $_____________ to cover the
exercise price thereof.
Date:
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(Name)
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(Address)
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(Tax ID No.)
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(Signature)
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