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Exhibit 7
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT (the "Agreement") is made between CIAO
CUCINA CORPORATION, an Ohio corporation (the "Company"), and BLUE CHIP CAPITAL
FUND LIMITED PARTNERSHIP, a Delaware limited partnership ("Purchaser") effective
as of May 22, 1998. The parties hereby agree as follows:
1. General. This Agreement sets forth the terms upon which the
Purchaser will purchase a promissory note in the form attached hereto as Exhibit
A (the "Note") from the Company providing for a loan (the "Loan") of $100,000
principal amount to the Company. The obligations of the Company under the Note
and the Loan have been secured by a security agreement dated as of January 16,
1998 (the "Security Agreement") executed by the Company in favor of the
Purchaser. As partial consideration for the Loans and to induce Purchaser to
enter into this Agreement, Company is delivering to Purchaser a common stock
purchase warrant of even date herewith (the "Warrant") executed by the Company
in favor of Purchaser. As soon as practicable after the date hereof, the Company
and Purchaser shall enter into an amended and restated registration rights
agreement (the "Registration Rights Agreement") with respect to any shares
issuable upon exercise of the Warrant and the Warrant dated as of January 16,
1998 (the "Warrant Shares") providing for one "demand" and unlimited "piggyback"
rights and otherwise on such terms or conditions as Purchaser may specify. The
Note, the Security Agreement, the Warrant, and the Registration Rights Agreement
are collectively referred to herein as the "Loan Documents". Simultaneously with
the execution of this Agreement, counsel to the Company is delivering its
opinion to Purchaser with respect to certain of the matters set forth in
Sections 3.1, 3.2, 3.3, 3.4 and 3.5 hereof, and the Company is delivering to
Purchaser certified resolutions of the Company's Board of Directors with respect
to the transactions contemplated hereby.
2. The Loan. Upon the terms set forth in this Agreement and the Loan
Documents, Purchaser is making a loan to the Company in a principal amount of
$100,000.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that, except as set forth in Exhibit 3
hereto.
3.1 Incorporation of the Company. The Company is a corporation
duly organized and validly existing under the laws of the State of Ohio with
full corporate power and authority to execute, deliver and perform this
Agreement and the Loan Documents to which the Company is a party, to conduct its
business and to own its properties. This Agreement and the Loan Documents to
which the Company is a party have been duly
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authorized by all necessary corporate action of the Company and constitute
legal, valid and binding obligations of the Company enforceable against it in
accordance with their terms.
3.2 No Conflict. Neither the execution and delivery of this
Agreement and the Note nor the completion of the transactions contemplated
hereby or thereby will contravene or violate (a) any provision of the Articles
of Incorporation or the Code of Regulations of the Company or any of its
affiliates, (b) any agreement or commitment to which the Company or any of its
affiliates is a party or (c) any law or order of any court or governmental
agency applicable to the Company or any of its affiliates.
3.3 Capitalization. The authorized stock of the Company
consists of 10,000,000 shares of Common Stock, of which approximately 3,250,000
shares are duly issued and outstanding, and 100,000 shares of preferred stock,
none of which are outstanding. None of the outstanding shares of Common Stock of
the Company has been issued in violation of any federal or state securities
laws. There are no outstanding commitments of any kind (including options,
warrants and rights) relating to the issuance or transfer of any capital stock
of the Company. The shares of Common Stock to be issued upon exercise of the
Warrant will be validly authorized, duly issued and outstanding, fully paid and
non-assessable and issued free and clear of all encumbrances and have been
received for issuance. None of the outstanding capital stock of the Company was
issued in violation of applicable law, preemptive right or agreement.
3.4 Organization of the Company. The Company has no
subsidiaries and does not own, or have any agreement or commitment to acquire,
any stock of any person or any direct or indirect equity or ownership interest
in any other business. The Company is duly qualified as a foreign corporation
and in good standing in each jurisdiction where the nature of its activities or
ownership of property requires it to be so qualified.
3.5 Approvals. No approval or authorization of, or filing
with, any governmental agency, and no consent or approval of any person, is
required to be obtained or made by the Company in connection with the execution,
delivery or performance of this Agreement or any Loan Document or any
transactions contemplated hereby or thereby.
3.6 Financial Statements. The Company has delivered to
Purchaser true and correct copies of the financial statements of the Company as
at December 31, 1997 and for the year then ended (the balance sheet of the
Company as of December 31, 1997 is hereinafter referred to as the "Balance
Sheet") and for the period then ended. Such financial statements fairly present
the assets, liabilities, financial condition and results of operations of the
Company at such date and for such period, all
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in accordance with generally accepted United States accounting principles
consistently applied throughout the periods involved.
3.7 No Undisclosed Liabilities. The Company does not have any
liabilities or obligations of any nature that were not fully reflected or
reserved against in the Balance Sheet, of a nature required to be so reflected
or reserved in accordance with the United States generally accepted accounting
principles consistently applied, except for immaterial liabilities and
obligations incurred in the ordinary course of business and consistent with past
practice since the respective dates thereof. All reserves reflected in the
Balance Sheet are adequate.
3.8 Compliance with Law. The operations of the Company have
been conducted in accordance with all applicable laws and regulations. The
Company has not received any notification of any asserted present or past
failure to comply with any such law or regulation. The Company has all licenses,
permits and approvals from governmental agencies required for the conduct of its
businesses and is not in violation of any of them. Each is in full force and
effect, and no suspension or cancellation has been threatened. All required
filings by the Company with the Securities and Exchange Commission or any state
securities agency have been made. All of such filings comply in all material
respects with the rules and regulations relating thereto, and none of such
filings contains any misstatement of material fact or omits any material fact
required to be stated therein or necessary to make the statements therein not
materially misleading.
3.9 Brokerage Fees, Etc. No person has any claim for brokerage
fees, commissions or similar payments with respect to the transactions
contemplated hereby based upon any agreement or understanding made by the
Company or any of its shareholders.
4. Representations and Warranties of Purchaser. Purchaser represents
and warrants to, and agrees with, the Company as follows:
(a) This Agreement constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms.
(b) The Note, the Warrant and the Warrant Shares will be acquired for
investment for its own account, not as a nominee or agent, and not with a view
to the distribution thereof.
(c) Purchaser acknowledges that the Note, the Warrant and the Warrant
Shares have not been registered under the Securities Act of 1933, as amended
(the "Act"), and, therefore, cannot be resold unless subsequently registered
under such Act or unless an exemption from such registration is available.
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(d) Purchaser or its representatives have been provided the opportunity
to ask questions of and receive answers from one or more officers of the Company
concerning the terms and conditions of this transaction and to obtain
information concerning the Company.
5. Miscellaneous.
(a) The representations, warranties and covenants of the Company and
Purchaser contained herein or made pursuant to this Agreement shall survive the
execution and delivery hereof and delivery of the Note.
(b) The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors, heirs and assigns of
the parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
(c) This Agreement shall be governed by and construed under the
internal laws of the State of Ohio as applied to agreements entered into and to
be performed entirely within the State of Ohio.
(d) This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
(e) The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
(f) This Agreement, together with the Loan Documents, constitutes the
entire agreement of the parties with respect to its subject matter.
(g) Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Purchaser.
(h) The Company shall reimburse Purchaser for all legal fees and
expenses incurred by it in connection with the preparation and registration of
this Agreement and the Loan
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Documents. Purchaser may offset such fees and expenses against
any of the Loans.
BLUE CHIP CAPITAL FUND
LIMITED PARTNERSHIP
By: Blue Chip Venture
Company, its General
Partner
By: /s/ John H. Wyant
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Name: John H. Wyant
Title: President
CIAO CUCINA CORPORATION
By: /s/ Stephen J. Kent
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Name: Stephen J. Kent
Title: President
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