Exhibit 3.7
Class B Redeemable Warrant Agreement including Form of
Class B Redeemable Warrant Certificate
DATE: _________, 2001
PARTIES:
BellaCasa Productions, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx #000, Xxxxx 000
Xxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Atlas Stock Transfer Corporation
0000 Xxxxx Xxxxx Xx.
Xxxx Xxxx Xxxx, Xxxx 00000
RECITALS:
BellaCasa Productions, Inc., a Nevada corporation (the "Company"), proposes to
issue 1,200,000 Class B Redeemable Warrants ("Warrants") evidencing the right to
purchase an aggregate of up to 1,200,000 authorized but previously unissued
shares of Common Stock, par value $0.0001 per share, of the Company (the "Common
Stock").
The Company desires Atlas Stock Transfer Corporation (the "Warrant Agent") to
act on behalf of the Company, and the Warrant Agent desires so to act, in
connection with the issuance, registration, transfer, exchange and exercise of
the Warrants.
AGREEMENT:
The Company and the Warrant Agent therefore agree as follows:
Section 1. Appointment of Warrant Agent; Issuance, Form and Execution of Warrant
Certificates.
(a) Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent
to act as agent for the Company, and the Warrant Agent hereby accepts the agency
established herein and agrees to perform its agency duties in accordance with
the terms and conditions of this Warrant Agreement.
(b) Warrant Certificates. The Company shall execute and deliver to the Warrant
Agent certificates which the Company has authorized to represent the Warrants
("Warrant Certificates"). The Warrant Certificates shall be substantially as set
forth in Exhibit A and may have such legends, summaries or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Warrant Agreement, or as may be
required to comply with any law or with any rule or regulation relating to
listing of the Warrants on the NASDAQ system, including the Nasdaq National
Market, or on any stock exchange or to conform to usage. The Warrant
Certificates shall be dated the date of their issuance.
(c) Execution of Warrant Certificates. The Warrant Certificates shall be
executed on behalf of the Company by a duly authorized officer of the Company,
either manually or by facsimile signature printed thereon. The Warrant
Certificates shall be manually countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. Any Warrant Certificate may be
signed on behalf of the Company by the person who at the actual date of the
signing of such Warrant Certificate shall have been the proper officer of the
Company, although at the date of issuance of such Warrant Certificate any such
person has ceased to be such officer of the Company.
Section 2. Exercise of Warrants.
(a) Exercise. Any or all of the Warrants represented by each Warrant Certificate
may be exercised by the holder thereof on or before 5:00 P.M., Eastern time, on
________, 2004, unless extended by the Company, by surrender of the Warrant
Certificate with the Purchase Form, which is printed on the reverse thereof (or
a reasonable facsimile thereof), duly executed by such holder, to the Warrant
Agent at its principal office in Salt Lake City accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
an amount equal to the product of the number of shares of Common Stock issuable
upon exercise of the Warrant represented by such Warrant Certificate, as
adjusted pursuant to the provisions of Section 3 hereof, multiplied by the
exercise price of $2.00, as adjusted pursuant to the provisions of Section 3
hereof (the applicable price as so adjusted from time to time being herein
called the "Purchase Price"), and such holder shall be entitled to receive such
number of fully paid and non-assessable shares of Common Stock, as so adjusted,
at the time of such exercise.
(b) Time of Exercise. Each exercise of Warrants shall be deemed to have been
effective immediately prior to the close of business on the business day on
which the Warrant Certificate relating to such Warrants shall have been
surrendered to the Warrant Agent as provided in Section 2(a), and at such time
the person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such exercise as provided in
Section 2(c) shall be deemed to have become the holder or holders of record
thereof.
(c) Issuance of Shares of Common Stock; No Fractional Shares. As soon as
practicable after the exercise of any Warrant, and in any event within ten (10)
days after receipt by the Company of the notice of exercise under Section 2(a),
the Company at its expense (including the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to the holder
thereof or as such holder (upon payment by such holder of any applicable
transfer taxes) may direct, (a) a certificate or certificates for the number of
fully paid and non-assessable shares of Common Stock to which such holder shall
be entitled upon such exercise plus, in lieu of any fractional share to which
such holder would otherwise be entitled, an amount in cash equal to such
fraction multiplied by the then current value of a share of Common Stock, such
current value to be determined as follows: (i) if the Common Stock shall be
listed or admitted to unlisted trading privileges on any single national
securities exchange, then such current value shall be computed on the basis of
the last reported sale price of the Common Stock on such exchange on the last
business day prior to the date of the exercise of such Warrant upon which a sale
shall have been effected; or (ii) if the Common Stock shall not be so listed or
admitted to unlisted trading privileges and bid and asked prices therefore in
the over-the-counter market shall be reported by NASDAQ, including the Nasdaq
National Market, then such current value shall be computed on the basis of the
Last Reported Sale Valuation Method or, in the event such method is not then
used by NASDAQ, the average of the closing bid and asked prices on the last
business day prior to the date of the exercise of such Warrant as so reported;
or (iii) if the Common Stock shall be listed or admitted to unlisted trading
privileges on more than one national securities exchange or one or more national
securities exchanges and in the over-the-counter market, then such current value
shall, if different as a result of calculation under the applicable method(s)
described above in this Section, be deemed to be the higher number calculated in
connection therewith; or (iv) if the shares of Common Stock are traded over the
counter but not on any national securities exchange and not in the NASDAQ
National Market System, the average of the mean bid and asked prices per share,
as reported by Pink Sheets LLC, or an equivalent generally accepted reporting
service, or (v) if the Common Stock shall not be so listed, admitted to unlisted
trading privileges, or traded over the counter and such bid and asked prices
shall not be so reported, then such current value shall be computed on the basis
of the book value of Common Stock as of the close of business on the last day of
the month immediately preceding the date upon which
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such Warrant was exercised, as determined by the Company; and (b) in case such
exercise includes only part of the Warrants represented by any Warrant
Certificate, a new Warrant Certificate or Warrant Certificates of like tenor,
calling in the aggregate on the face or faces thereof for the number of shares
of Common Stock equal (without giving effect to any adjustment therein) to the
number of such shares called for on the face of such Warrant Certificate minus
the number of such shares designated by the holder for such exercise as provided
in Section 2(a). Warrants represented by a properly assigned Warrant Certificate
may be exercised by a new holder without first having a new Warrant Certificate
issued.
(d) Extension of Exercise Period; Change of Exercise Price. The Company may,
upon notice given to the Warrant Agent, and without the consent of the holders
of the Warrant Certificates, (a) reduce the Purchase Price during all or any
portion of the originally stated exercise period or (b) extend the period over
which the Warrants are exercisable beyond ________, 2004, and increase or
decrease the Purchase Price for any period the Warrant exercise period is
extended. In the case of the extension of the exercise period or a change in the
Purchase Price, the Company must provide the Warrant Agent and the Warrant
holders of record notice of such extension of the exercise period, specifying,
as the case may be, the time to which such exercise period is extended, or
specifying the new Purchase Price and the periods for which such new Purchase
Price is in effect, a reasonable time prior to the date such extension or new
Purchase Price is to take effect, such reasonable time to be commercially
reasonable and consistent with applicable securities laws and regulations.
Section 3. Anti-dilution Provisions.
(a)(i) Adjustment of Purchase Price. In the event that: (i) any dividends on any
class of stock of the Company payable in Common Stock or securities convertible
into Common Stock shall be paid by the Company; (ii) the Company shall subdivide
its then outstanding shares of Common Stock into a greater number of shares; or
(iii) the Company shall combine outstanding shares of Common Stock, by
reclassification or otherwise; then, in any such event, the Purchase Price in
effect immediately prior to such event shall (until adjusted again pursuant
hereto) be adjusted immediately after such event to a price (calculated to the
nearest full cent) determined by dividing (A) the number of shares of Common
Stock outstanding immediately prior to such event, multiplied by the then
existing Purchase Price, by (B) the total number of shares of Common Stock
outstanding immediately after such event (including in each case the maximum
number of shares of Common Stock issuable in respect of any securities
convertible into Common Stock), and the resulting quotient shall be the adjusted
Purchase Price per share.
(a)(ii) No adjustment of the Purchase Price shall be made if the amount of such
adjustments shall be less than $0.05 per share, but in such case any adjustment
that would otherwise be required then to be made shall be carried forward and
shall be made at the time and together with the next subsequent adjustment
which, together with any adjustment or adjustments so carried forward, shall
amount to not less than $0.05 per share.
(b) Adjustment of Number of Shares Purchasable on Exercise of Warrants. Upon
each adjustment of the Purchase Price pursuant to Section 3(a) above, the
registered holder of each Warrant shall thereafter (until another such
adjustment) be entitled to purchase at the adjusted Purchase Price the number of
shares, calculated to the nearest full share, obtained by multiplying the number
of shares specified in such Warrant (as adjusted as a result of all adjustments
in the Purchase Price in effect prior to such adjustment) by the Purchase Price
in effect prior to such adjustment and dividing the product so obtained by the
adjusted Purchase Price.
(c) Notice as to Adjustment. Upon any adjustment of the Purchase Price and an
increase or decrease in the number of shares of Common Stock purchasable upon
the exercise of the Warrants, then, and in each such case, the Company shall
within ten (10) days after the effective date of such adjustment give written
notice thereof, by first class mail, postage prepaid, addressed to each
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registered Warrant holder at the address of such Warrant holder as shown on the
books of the Company, which notice shall state the adjusted Purchase Price and
the increased or decreased number of shares purchasable upon the exercise of the
Warrants, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(d) Effect of Reorganization, Reclassification, Merger, Etc. If at any time
while any Warrant is outstanding there should be any capital reorganization or
reclassification of the capital stock of the Company (other than the issue of
any shares of Common Stock in subdivision of outstanding shares of Common Stock
by reclassification or otherwise and other than a combination of shares provided
for in Section 3(a) hereof) or any consolidation or merger of the Company with
another corporation or any sale, conveyance, lease or other transfer by the
Company of all or substantially all of its property to any other corporation,
the holder of any Warrant shall, during the remainder of the period such Warrant
is exercisable, be entitled to receive, upon payment of the Purchase Price, the
number of shares of stock or other securities or property of the Company, or of
the successor corporation resulting from such consolidation or merger, or of the
corporation to which the property of the Company has been sold, conveyed, leased
or otherwise transferred, as the case may be, to which the Common Stock (and any
other securities and property) of the Company, deliverable upon the exercise of
such Warrant, would have been entitled upon such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, conveyance,
lease or other transfer if such Warrant had been exercised immediately prior to
such capital reorganization, reclassification of capital stock, consolidation,
merger, sale, conveyance, lease or other transfer; and, in any such case,
appropriate adjustment (as determined by the Board of Directors of the Company)
shall be made in the application of the provisions set forth in this Warrant
Agreement with respect to the rights and interests thereafter of the Warrant
holders to the end that the provisions set forth in this Warrant Agreement
(including the adjustment of the Purchase Price and the number of shares
issuable upon the exercise of the Warrants) shall thereafter be applicable, as
near as may be reasonably practicable, in relation to any shares or other
property thereafter deliverable upon the exercise of the Warrants as if the
Warrants had been exercised immediately prior to such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, conveyance,
lease or other transfer and the Warrant holders had carried out the terms of the
exchange as provided for by such capital reorganization, reclassification,
consolidation or merger. The Company shall not effect any such capital
reorganization, consolidation, merger or transfer unless, upon or prior to the
consummation thereof, the successor corporation or the corporation to which the
property of the Company has been sold, conveyed, leased or otherwise transferred
shall assume by written instrument the obligation to deliver to the holder of
each Warrant such shares of stock, securities, cash or property as in accordance
with the foregoing provisions such holder shall be entitled to purchase.
(e) Prior Notice as to Certain Events. In case at any time:
the Company shall pay any dividend upon its Common Stock payable in stock or
make any distribution (other than cash dividends) to the holders of its Common
Stock; or
the Company shall offer for subscription pro rata to the holders of its Common
Stock any additional shares of stock of any class or any other rights; or
there shall be any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with, or sale,
conveyance, lease or other transfer of all or substantially all of its assets
to, another corporation; or
there shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Company;
then in any one or more of such cases, the Company shall give prior written
notice, by first class mail, postage prepaid, addressed to each registered
Warrant holder at the address of such Warrant holder as shown on the books of
the Company, of the date on which (x) the books of the Company shall close or a
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record shall be taken for such stock dividend, distribution or subscription
rights or (y) such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall participate in such dividend, distribution or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least
twenty (20) days prior to the action in question and not less than twenty (20)
days prior to the record date or the date on which the Company's transfer books
are closed in respect thereto.
(f) Certain Obligations of the Company. The Company will not, by amendment of
its articles of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant Agreement or the Warrant Certificate, but will at all
times in good faith assist in the carrying out of all such terms. Without
limiting the generality of the foregoing, the Company (a) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of such stock upon the
exercise of all Warrants from time to time outstanding, and (b) will not (i)
transfer all or substantially all of its properties and assets to any other
person or entity, or (ii) consolidate with or merge into any other entity where
the Company is not the continuing or surviving entity, or (iii) permit any other
entity to consolidate with or merge into the Company where the Company is the
continuing or surviving entity but, in connection with such consolidation or
merger, the Common Stock then issuable upon the exercise of the Warrants shall
be changed into or exchanged for shares or other securities or property of any
other entity unless, in any such case, the other entity acquiring such
properties and assets, continuing or surviving after such consolidation or
merger or issuing or distributing such shares or other securities or property,
as the case may be, shall expressly assume in writing and be bound by all the
terms of this Warrant Agreement and the Warrant Certificates.
(g) Reservation and Listing of Common Stock. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the exercise
of the Warrants, all shares of Common Stock from time to time issuable upon such
exercise. All such shares shall be authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable with no
liability on the part of the holder thereof. The Company, at its expense, will
list on the NASDAQ system, including the Nasdaq National Market, if applicable,
and on each national securities exchange on which any Common Stock may at any
time be listed, subject to official notice of issuance, and will maintain such
listing of, the shares of Common Stock from time to time issuable upon the
exercise of the Warrants.
(h) Registration or Exemption for Common Stock. The Company will use its best
efforts (a) at all times the Warrants are exercisable to maintain an effective
registration statement under the Securities Act of 1933, as amended (the "Act"),
covering Common Stock issuable upon exercise of the Warrants, (b) from time to
time to amend or supplement the prospectus contained in such registration
statement to the extent necessary in order to comply with applicable law, (c) to
qualify for exemption from the registration requirements of the Act the Common
Stock issuable upon exercise of the Warrants, and (d) to maintain exemptions or
qualifications, in those jurisdictions in which the original registration
statement relating to the Warrants was initially qualified, to permit the
exercise of the Warrants and the issuance of the Common Stock pursuant to such
exercise. The Warrant Agent shall have no responsibility for the maintenance of
such exemptions or qualifications or for liabilities arising from the exercise
or attempted exercise of Warrants in jurisdictions where exemptions or
qualifications have not been maintained or are otherwise unavailable.
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Section 4. Redemption of Warrants.
(a) Redemption Price. The Warrants may be redeemed at the option of the Company
in whole, at any time on or after issuance, and on or before ________, 2004,
upon notice as set forth in Section 4(b), and at a redemption price equal to
$0.01 per Warrant, provided that (a) the last reported sale price of the Common
Stock on a national securities exchange, if the Common Stock shall be listed or
admitted to unlisted trading privileges on a national securities exchange, or
(b) the closing bid price of the Common Stock on the NASDAQ system, if the
Common Stock is not so listed or admitted to unlisted trading privileges, or (c)
the average of the mean of the bid and asked prices as reported by Pink Sheets
LLC or another generally accepted quotation service, has been at least 150% of
the then the effective Purchase Price on each of the 20 consecutive trading days
ending on the third day before notice of redemption is given.
(b) Notice of Redemption. In the case of any redemption of Warrants, the Company
or, at its request, the Warrant Agent in the name of and at the expense of the
Company, shall give notice of such redemption to the holders of the Warrants to
be redeemed as hereinafter provided in this Section 4(b). Notice of redemption
to the holders of Warrants shall be given by mailing by first-class mail a
notice of such redemption not less than 30 days prior to the date fixed for
redemption. Any notice which is given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice. In any case, failure duly to give such notice, or any
defect in such notice, to the holder of any Warrant Certificate shall not affect
the validity of the proceedings for the redemption of Warrants represented by
any other Warrant Certificate. Each such notice shall specify the date fixed for
redemption, the place of redemption and the redemption price of $0.01 at which
each Warrant is to be redeemed, and shall state that payment of the redemption
price of the Warrants will be made on surrender of the Warrants at such place of
redemption, and that if not exercised by the close of business on the date fixed
for redemption, the exercise rights of the Warrants identified for redemption
shall expire unless extended by the Company. Such notice shall also state the
current Purchase Price and the date on which the right to exercise the Warrants
will expire unless extended by the Company.
(c) Payment of Warrants on Redemption; Deposit of Redemption Price. If notice of
redemption shall have been given as provided in Section 4(b), the redemption
price of $0.01 per Warrant shall, unless the Warrant is theretofore exercised
pursuant to the terms hereof, become due and payable on the date and at the
place stated in such notice. On and after such date of redemption, provided that
cash sufficient for the redemption thereof shall then be deposited by the
Company with the Warrant Agent for that purpose, the exercise rights of the
Warrants identified for redemption shall expire. On presentation and surrender
of Warrant Certificates at such place of payment specified in such notice, the
Warrants identified for redemption shall be paid and redeemed at the redemption
price of $0.01 per Warrant. Prior to the date fixed for redemption, the Company
shall deposit with the Warrant Agent an amount of money sufficient to pay the
redemption price of all the Warrants identified for redemption. Any monies which
shall have been deposited with the Warrant Agent for redemption of Warrants and
which are not required for that purpose by reason of exercise of Warrants shall
be repaid to the Company upon delivery to the Warrant Agent of evidence
satisfactory to it of such exercise.
Section 5. Certain Other Provisions Relating to Rights of Holders of Warrant
Certificates.
(a) No Rights of Shareholders. The Warrant Certificates shall be issued in
registered form only. No Warrant Certificate shall entitle the holder thereof to
any of the rights of a holder of shares of Common Stock of the Company,
including, without limitation, the right to vote, to receive dividends and other
distributions, or to receive any notice of, or to attend, meetings of holders of
Common Stock or any other proceedings of the Company.
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(b) Loss, Theft, Destruction or Mutilation of Warrant Certificates. Upon receipt
by the Warrant Agent of evidence reasonably satisfactory to the Warrant Agent of
the loss, theft, destruction or mutilation of any Warrant Certificate, and (a)
in the case of any such loss, theft, or destruction, upon delivery to the
Warrant Agent of an indemnity bond in form and amount, and issued by a bonding
company, reasonably satisfactory to the Company, or (b) in the case of any such
mutilation, upon surrender to and cancellation by the Warrant Agent of such
Warrant Certificate, the Company at its expense will execute and cause the
Warrant Agent to countersign and deliver, in lieu thereof, a new Warrant
Certificate of like tenor.
(c) Transfer Agent; Cancellation of Warrant Certificates; Unexercised Warrants.
Atlas Stock Transfer Corporation (and any successor), as transfer agent (the
"Transfer Agent"), is hereby irrevocably authorized and directed at all times to
reserve such number of authorized and unissued shares of Common Stock as shall
be sufficient to permit the exercise in full of all Warrants from time to time
outstanding. The Company will keep a copy of this Agreement on file with the
Transfer Agent. The Warrant Agent, and any successor thereto, is hereby
irrevocably authorized to requisition from time to time from the Transfer Agent
certificates for shares of Common Stock required for exercise of Warrants. The
Company will supply the Transfer Agent with duly executed certificates for
shares of Common Stock for such purpose and will make available any cash
required in settlement of fractional share interests. All Warrant Certificates
surrendered upon the exercise or redemption of Warrants shall be canceled by the
Warrant Agent and shall thereafter be delivered to the Company; such cancelled
Warrant Certificates, with the Purchase Form on the reverse thereof duly filled
in and signed, shall constitute conclusive evidence as between the parties
hereto of the numbers of shares of Common Stock which shall have been issued
upon exercises of Warrants. Promptly after the last day on which the Warrants
are exercisable (set forth in Section 2(a) above), the Warrant Agent shall
certify to the Company the aggregate number of Warrants then outstanding and
unexercised. No shares of Common Stock shall be subject to reservation with
respect to Warrants not exercised prior to the time and date identified in
Section 2(a) above as the last time and date at which Warrants may be exercised.
Section 6. Transfer and Exchange of Warrant Certificates.
(a) Warrant Register; Transfer or Exchange of Warrant Certificates. The Warrant
Agent shall cause to be kept at the principal office of the Warrant Agent a
register (the "Warrant Register") in which, subject to such reasonable
regulations as the Company may prescribe, provisions shall be made for the
registration of transfers and exchanges of Warrant Certificates. Upon surrender
for transfer or exchange of any Warrant Certificates, properly endorsed, to the
Warrant Agent, the Warrant Agent at the Company's expense will issue and deliver
to or upon the order of the holder thereof a new Warrant Certificate or Warrant
Certificates of like tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face of the Warrant Certificate so surrendered. Any
Warrant Certificate surrendered for transfer or exchange shall be cancelled by
the Warrant Agent and shall thereafter be delivered to the Company.
(b) Identity of Warrant holders. Until a Warrant Certificate is transferred in
the Warrant Register, the Company and the Warrant Agent may treat the person in
whose name the Warrant Certificate is registered as the absolute owner thereof
and of the Warrants represented thereby for all purposes, notwithstanding any
notice to the contrary, except that, if and when any Warrant Certificate is
properly assigned in blank, the Company and the Warrant Agent may (but shall not
be obligated to) treat the bearer thereof as the absolute owner of the Warrant
Certificate and of the Warrants represented thereby for all purposes,
notwithstanding any notice to the contrary.
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Section 7. Concerning the Warrant Agent
(a) Taxes. The Company will, from time to time, promptly pay to the Warrant
Agent, or make provision satisfactory to the Warrant Agent for the payment of,
all taxes and charges that may be imposed by the United States or any State upon
the Company or the Warrant Agent upon the transfer or delivery of shares of
Common Stock upon the exercise of Warrants, but the Company shall not be
obligated to pay any tax imposed in connection with any transfer involved in the
delivery of certificate for shares of Common Stock in any name other than that
of the registered holder of the Warrant Certificate surrendered in connection
with the purchase thereof.
(b) Replacement of Warrant Agent in Certain Circumstances. The Warrant Agent may
resign its duties and be discharged from all further duties and liabilities
hereunder after giving thirty (30) days notice in writing to the Company, except
that such shorter notice may be given as the Company shall, in writing, accept
as sufficient. The Company may discharge the Warrant Agent at any time with or
without reason, effective upon thirty (30) days written notice to the Warrant
Agent or such shorter period as the Warrant Agent shall, in writing, accept as
sufficient. If the office of Warrant Agent becomes vacant by resignation,
discharge, incapacity to act or otherwise, the Company shall appoint in writing
a new Warrant Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
the holder of a Warrant Certificate, then the holder of any Warrant Certificate
may apply to any court of competent jurisdiction for the appointment of a new
Warrant Agent. Any new Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to the Company an instrument accepting such appointment
hereunder and thereupon such new Warrant Agent without any further act or deed
shall become vested with all the rights, powers, duties and responsibilities of
the Warrant Agent hereunder with like effect as if it had been named as the
Warrant Agent; but if for any reason it becomes necessary or expedient to have
the former Warrant Agent execute and deliver any further assurance, conveyance,
act or deed, the same shall be done and shall be legally and validly executed
and delivered by the former Warrant Agent. Not later than the effective date of
any such appointment the Company shall file notice thereof with the former
Warrant Agent. The Company shall promptly give notice of any such appointment to
the holders of the Warrant Certificates by mail to their addresses as shown in
the Warrant Register. Failure to file or give such notice, or any defect
therein, shall not affect the legality or validity of the appointment of the
successor Warrant Agent.
(c) Successor Warrant Agent. Any company into which the Warrant Agent or any new
Warrant Agent may be merged or converted or with which it may be consolidated or
any company resulting from any merger, conversion or consolidation to which the
Warrant Agent or any new Warrant Agent shall be a party shall be the successor
Warrant Agent under this Warrant Agreement without any further act; provided
that if such company would not be eligible for appointment as a successor
Warrant Agent under the provisions of paragraph of this Section 7(b) the Company
shall forthwith appoint a new Warrant Agent in accordance with such provisions.
Any such successor Warrant Agent may adopt the prior countersignature of any
predecessor Warrant Agent and deliver Warrant Certificates countersigned and not
delivered by such predecessor Warrant Agent or may countersign Warrant
Certificates either in the name of any predecessor Warrant Agent or the name of
the successor Warrant Agent.
(d)(i) Remuneration of Warrant Agent. The Company will pay the Warrant Agent
reasonable remuneration for its services as Warrant Agent hereunder and will
reimburse the Warrant Agent upon demand for all expenditures that the Warrant
Agent may reasonably incur in the execution of its duties hereunder.
(d)(ii) Further Assurances. The Company will perform, exercise, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
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by the Warrant Agent for the carrying out or performing by the Warrant Agent of
the provisions of this Warrant Agreement.
(e)(i) Limitations on Liabilities of the Warrant Agent. The Warrant Agent may
consult with legal counsel (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete authorization and protection
of the Warrant Agent as to any action taken or omitted by it in good faith and
in accordance with such opinion. Whenever, in the performance of its duties
under this Warrant Agreement, the Warrant Agent shall deem it necessary or
desirable that any matter be proved or established, or that any instructions
with respect to the performance of its duties hereunder be given, by the Company
prior to taking or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established, or such instructions may be given, by a
certificate or instrument signed by an officer of the Company and delivered to
the Warrant Agent; and such certificate or instrument shall be full
authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Warrant Agreement in reliance upon such
certificate or instrument; but in its discretion the Warrant Agent may in lieu
thereof accept other evidence of such matter or may require such further or
additional evidence as it may deem reasonable.
(ii) The Warrant Agent shall be liable hereunder only for its own negligence or
willful misconduct. The Warrant Agent shall act hereunder solely as agent, and
its duties shall be determined solely by the provisions hereof. The Company
agrees to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the execution of this Warrant Agreement except
as a result of the Warrant Agent's negligence or willful misconduct.
(iii) The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Warrant Agreement or in the
Warrant Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(iv) The Warrant Agent shall not be under any responsibility in respect to the
validity or execution of any Warrant Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Warrant Agreement or in any Warrant
Certificate; nor shall it be responsible for the making of any adjustment in the
Purchase Price, or number of shares issuable upon exercise of the Warrant
Certificates or responsible for the manner, method or amount of any such
adjustment or the facts that would require any such adjustment; nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued pursuant
to this Warrant Agreement or any Warrant Certificate or as to whether any shares
of Common Stock or other securities are or will be validly authorized and issued
and fully paid and non-assessable.
(v) Amendment and Modification. The Warrant Agent may, without the consent or
concurrence of the holders of the Warrant Certificates, by supplemental
agreement or otherwise, join with the Company in making any changes or
corrections in this Warrant Agreement that they shall have been advised by
counsel (a) are required to cure any ambiguity or to correct any defective or
inconsistent provision or clerical omission or mistake or manifest error herein
contained, (b) add to the obligations of the Company in this Warrant Agreement
further obligations thereafter to be observed by it, or surrender any right or
power reserved to or conferred upon the Company in this Warrant Agreement, or
(c) do not or will not adversely affect, alter or change the rights, privileges
or immunities of the holders of Warrant Certificates not provided for under this
Warrant Agreement; provided, however, that any term of this Warrant Agreement or
any Warrant Certificate may be changed, waived, discharged or terminated by an
instrument in writing signed by each party against which enforcement of such
9
change, waiver, discharge or termination is sought, or by which the same is to
be performed or observed.
Section 8. Other Matters.
(a) Successors and Assigns. All the covenants and provisions of this Warrant
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns.
(b) Notices. Any notice or demand authorized by this Warrant Agreement to be
given or made by the Warrant Agent or by the holder of any Warrant Certificate
to or on the Company shall be sufficiently given or made if sent by first class
or registered mail, postage prepaid, addressed (until another address is filed
in writing by the Company with the Warrant Agent) as follows:
BellaCasa Productions, Inc.
100 Universal City Xxxxx
Xxxxxxxx #000, Xxxxx 000
Xxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Any notice or demand authorized by this Warrant Agreement to be given or made by
the holder of any Warrant Certificate or by the Company to or on the Warrant
Agent shall be sufficiently given or made if sent by first class or registered
mail, postage prepaid, addressed (until another address is filed in writing by
the Warrant Agent with the Company) as follows:
Atlas Stock Transfer Corporation
0000 Xxxxx Xxxxx Xx.
Xxxx Xxxx Xxxx, Xxxx 00000
(c) Governing Law. This Warrant Agreement and the Warrant Certificates shall be
construed and enforced in accordance with and governed by the laws of the State
of Nevada.
(d) No Benefits Conferred. Nothing in this Warrant Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the Company, the Warrant Agent, and the holders of the Warrant
Certificates, any right, remedy or claim under or by reason of this Agreement or
of any covenant, condition, stipulation, promise or agreement herein; and all
covenants, conditions, stipulations, promises and agreements in this Warrant
Agreement contained shall be for the sole and exclusive benefit of the Company,
the Warrant Agent, their respective successors and the holders of the Warrant
Certificates.
(e) Headings. The descriptive headings used in this Warrant Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
BellaCasa Productions, Inc.
By _______________________________________its __________________________________
Atlas Stock Transfer Corporation
By _______________________________________its __________________________________
10
EXHIBIT A
FORM OF CLASS B REDEEMABLE WARRANT CERTIFICATE
THIS WARRANT CERTIFICATE MAY BE TRANSFERRED SEPARATELY FROM THE COMMON STOCK
CERTIFICATE WITH WHICH IT IS INITIALLY ISSUED
EXERCISABLE ON OR BEFORE, AND VOID AFTER, 5:00 P.M. EASTERN TIME, ________, 2004
No. W- _________________________ Certificate for ___________________ Warrants
WARRANT CUSIP:
WARRANTS TO PURCHASE COMMON STOCK OF BELLACASA PRODUCTIONS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
THIS CERTIFIES that ___________________________________________ or assigns, is
the owner of the number of Warrants set forth above, each of which represents
the right to purchase from BellaCasa Productions, Inc., a Nevada corporation
(the "Company"), at any time on or before 5:00 P.M., Eastern time, ________,
2004, upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement hereinafter referred to, one share (subject to adjustments
referred to below) of the Common Stock of the Company (such shares or other
securities or property purchasable upon exercise of the Warrants being herein
called the "Shares"), by surrendering this Warrant Certificate, with the
Purchase Form on the reverse side duly executed, at the principal office of
Atlas Stock Transfer Corporation or its successor, as warrant agent (the
"Warrant Agent"), and by paying in full, in cash or by certified or official
bank check payable to the order of the Company, the purchase price of $2.00 per
share.
Upon any exercise of less than all the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder a new Warrant Certificate in
respect of the Warrants as to which this Warrant Certificate was not exercised.
Upon the surrender for transfer or exchange hereof, properly endorsed, to the
Warrant Agent, the Warrant Agent at the Company's expense will issue and deliver
to the order of the holder hereof a new Warrant Certificate or Warrant
Certificates of like tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face hereof.
The Warrant Certificates are issued only as registered Warrant Certificates.
Until this Warrant Certificate is transferred in the Warrant Register, the
Company and the Warrant Agent may treat the person in whose name this Warrant
Certificate is registered as the absolute owner hereof and of the Warrants
represented hereby for all purposes, notwithstanding any notice to the contrary.
This Warrant Certificate is issued under the Warrant Agreement dated as of
________, 2001, between the Company and the Warrant Agent and is subject to the
terms and provisions contained in said Warrant Agreement, to all of which terms
and provisions the registered holder of this Warrant Certificate consents by
acceptance hereof. Copies of said Warrant Agreement are on file at the principal
office of the Warrant Agent in Salt Lake City and may be obtained by writing to
the Warrant Agent.
The number of Shares receivable upon the exercise of the Warrants represented by
this Warrant Certificate and the purchase price per share are subject to
adjustment upon the happening of certain events specified in the Warrant
A-1
Agreement (which provisions are contained in Section 3 of the Warrant Agreement
and are hereby incorporated by reference).
No fractional Shares of the Company's Common Stock will be issued upon the
exercise of Warrants. As to any final fraction of a share which a holder of
Warrants exercised in the same transaction would otherwise be entitled to
purchase on such exercise, the Company shall pay a cash adjustment in lieu of
any fractional Share determined as provided in the Warrant Agreement.
The Warrants may be redeemed by the Company, in whole, at any time on or after
issuance, and on or before ________, 2004, at a redemption price of $0.01 per
Warrant, upon notice of such redemption as set forth below, provided that (a)
the last reported sale price of the Common Stock on a national securities
exchange, if the Common Stock shall be listed or admitted to unlisted trading
privileges on a national securities exchange, or (b) the closing bid price of
the Common Stock on the NASDAQ system, if the Common Stock is not so listed or
admitted to unlisted trading privileges, or (c) if the Common Stock trades over
the counter but is not reported in the NASDAQ National Market System or traded
on any national securities exchange, the average of the mean bid and asked
prices per share, as reported by Pink Sheets LLC or other generally accepted
quotation service, has been at least 150% of the then effective Purchase Price
on each of the 20 consecutive trading days ending on the third day before notice
of redemption is given. Notice of redemption shall be mailed not less than
thirty (30) days prior to the date fixed for redemption to the holders of
Warrants at their last registered addresses. If notice of redemption shall have
been given as provided in the Warrant Agreement and cash sufficient for the
redemption be deposited by the Company for that purpose, the exercise rights of
the Warrants identified for redemption shall expire at the close of business on
such date of redemption unless extended by the Company.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of Common Stock of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, to
exercise any preemptive right, or to receive any notice of, or to attend
meetings of holders of Common Stock or any other proceedings of the Company.
This Warrant Certificate shall be void and the Warrants and any rights
represented hereby shall cease unless exercised on or before 5:00 P.M. Eastern
time on ________, 2004, unless extended by the Company.
This Warrant Certificate shall not be valid for any purpose until it shall have
been countersigned by the Warrant Agent.
WITNESS the facsimile signatures of the Company's duly authorized officers.
Dated: ______________ BellaCasa Productions, Inc.
By _________________________________
its ________________________________
COUNTERSIGNED AND REGISTERED:
Atlas Stock Transfer Corporation
as Warrant Agent
By __________________________
Authorized Signatory
A-2
[Reverse of Warrant Certificate]
The Certificate of Incorporation of the Company Grants to the Board of Directors
the Power to Issue One or More Series or Classes of Preferred Stock and to Fix
the Designation and Powers, Preferences, Rights, Qualifications, Limitations,
and Restrictions Relating to Shares of Each Such Series or Class. The Company
Will Furnish to Any Shareholder Upon Request and Without Charge a Full Statement
of the Designation and Powers, Preferences, Rights, Qualifications, Limitations,
and Restrictions of Each Class or Series Authorized to be Issued, So Far as They
Have Been Determined, and the Authority of the Board to Determine the
Designation and Powers, Preferences, Rights, Qualifications, Limitations, and
Restrictions of Subsequent Classes or Series.
The Holder of This Warrant Certificate Will be Able to Exercise the Warrants
Only If a Current Prospectus Relating to the Shares Underlying the Warrants is
Then in Effect and Only If Such Shares are Qualified for Sale or Exempt From
Qualification Under the Applicable Securities Laws of the States in Which the
Holder of This Warrant Certificate Resides. Although the Company Will Use Its
Best Efforts to Maintain the Effectiveness of a Current Prospectus Covering the
Shares Underlying the Warrants, There Can be No Assurance That the Company Will
be Able to Do So, or to Get Any Required Amendments Declared Effective by
Federal or State Authorities in a Timely Manner. The Company Will be Unable to
Issue Shares to Those Persons Desiring to Exercise Their Warrants If a Current
Prospectus Covering the Shares Issuable Upon the Exercise of the Warrants is Not
Kept Effective or If Such Shares are Not Qualified Nor Exempt From Qualification
in the States in Which the Holders of the Warrants Reside.
TO: BellaCasa Productions, Inc.
c/o Atlas Stock Transfer Corporation, Warrant Agent
Purchase Form
(To be Executed by the Registered Holder in Order to Exercise Warrant
Certificates)
The undersigned hereby irrevocably elects to exercise _____________* of the
Warrants represented by the Warrant Certificate and to purchase for cash the
Shares issuable upon the exercise of said Warrants, and herewith makes payment
of $__________ therefore, and requests that certificates for such Shares shall
be issued in the name of
Please insert social security number or other identifying number of registered
holder of certificate:
_______________________________________________________________________________
_______________________________________________________________________________
Print Name:
_______________________________________________________________________________
Address:
_______________________________________________________________________________
Dated:
_______________________________________________________________________________
Signature(s):
* Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial exercise, the portion thereof being
exercised), in either case without making any adjustment for additional Common
Stock or any other securities or property or cash which, pursuant to the
adjustment provisions referred to in this Warrant Certificate, may be
deliverable upon exercise.
A-3
Assignment Form
(To be Executed by the Registered Holder in Order to Transfer Warrant
Certificates)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
___________** of the Warrants represented by this Warrant Certificate unto
Please insert social security number or other identifying number of Assignee:
_______________________________________________________________________________
_______________________________________________________________________________
Print Name:
_______________________________________________________________________________
Address:
and does hereby irrevocably constitute and appoint ____________________________
Attorney to transfer this Warrant Certificate on the records of the Company with
full power of substitution in the premises.
_______________________________________________________________________________
Dated:
_______________________________________________________________________________
Signature(s):
Signature(s) Guaranteed: ________________________
** Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial assignment, the portion thereof being
assigned), in either case without making any adjustment for additional Common
Stock or any other securities or property or cash which, pursuant to the
adjustment provisions referred to in this Warrant Certificate, may be
deliverable upon exercise.
NOTICE
The Signature(s) to the Purchase Form or the Assignment Form must correspond to
the name(s) as written upon the face of this Warrant Certificate in every
particular without alteration or enlargement or any change whatsoever.
A-4
