THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
-------------------------------------------
Proteque Corporation (a.k.a. Cassia Acquisition
Corporation)
COMMON STOCK PURCHASE WARRANT
-------------------------------------------
This certifies that, for good and valuable
consideration, Proteque Corporation, a Delaware
corporation (the "Company"), grants to
Acibar Investments International, Ltd. or assigns
the "Warrantholder", the right to subscribe for and
purchase from the Company 400,000 validly issued,
fully paid and nonassessable shares (the "Warrant
Shares") of the Company's Common Stock, par value
$0.001 per share (the "Common Stock"), 400,000
Shares at the purchase price per share of $0.75 (the
"Exercise Price"), at 0000 Xxxxxxxxx Xxxx., Xxxxx
000X, Xxxxxxx, Xxxxx Xxxxxxxx 00000 any time and
from time to time, (i) following the occurrence of a
Change in Control (as hereinafter defined), or (ii)
during the period from and including 9:00 AM, New
York City time, on May 24, 2001 until 5:00 PM, New
York City time, on May 23, 2008 (the "Expiration
Date"), all subject to the terms, conditions and
adjustments herein set forth. Certain capitalized
terms used herein and not otherwise defined are used
with the meanings ascribed to them in Section 17.
Certificate No. 1
Number of Shares: 400,000
Name of Warrantholder: Acibar Investments
International, Ltd.
1. Duration and Exercise of Warrant; Limitation
on Exercise; Payment of Taxes.
1.1 Duration and Exercise of Warrant. Subject to
the terms and conditions set forth herein, the
Warrant may be exercised, in whole or
in part, by the Warrantholder by:
(a) the surrender of this Warrant to the
Company, with a duly executed Exercise Form
specifying the number of Warrant Shares to be
purchased, during normal business hours on any
Business Day prior to the Expiration Date; and
(b) the delivery of payment to the Company,
for the account of the Company, by cash, by
certified or bank cashier's check or by wire
transfer of immediately available funds in
accordance with wire instructions that shall be
provided upon request, of the Exercise Price for the
number of Warrant Shares specified in the Exercise
Form in lawful money of the
United States of America. The Company agrees that
such Warrant Shares shall be deemed to be issued to
the Warrantholder as the record holder of such
Warrant Shares as of the close of business on the
date on which this Warrant shall have been
surrendered and payment made for the Warrant Shares
as aforesaid.
1.2 Company's Option to Redeem. The Company may, at
its option, upon not less than 30 days' nor more
than 60 days' notice given to each Holder, call for
redemption all of the outstanding Warrants at a call
price of $50.00 per warrant (the "Call Price") at
any time after 9:00 AM, New York City time, on May
24, 2005 (the "Callable Time"), provided that the
closing market price of the Company's Common Stock
exceeds $75.00 per share (as adjusted for stock
splits, combinations, reclassifications and similar
events) for at least 20 trading days in any period
of 30 consecutive trading days beginning at any
time after the Callable Time, and provided further
that any such call for redemption shall be effective
only if notice thereof is given to the Warrantholder
within 60 days following the most recent date on
which a call for redemption would have been
permitted hereunder. In the event the Company
exercises its right to redeem the Warrants, such
Warrants will be exercisable until the close of
business on the Business Day immediately preceding
the date fixed for redemption in such notice (the
"Call Date"). If any Warrant called for redemption
is not exercised by such time, such Warrant shall
cease to be exercisable and the holder thereof shall
be entitled only to receive the Call Price. Payment
of the Call Price will be made by the Company upon
presentation and surrender of the Warrant
Certificates representing such Warrants to the
Company at its address specified in Section 18.6(a)
herein (the "Company Office").
1.3 Limitations on Exercise. Notwithstanding
anything to the contrary herein, this Warrant may be
exercised only upon (i) the delivery to Company of
any certificates, legal opinions, or other documents
reasonably requested by the Company to satisfy the
Company that the proposed exercise of this Warrant
may be effected without registration under the
Securities Act, and (ii) receipt by the Company of
FCC approval of the proposed exercise, if such
approval is required (as determined by a written
opinion of the Company's special FCC counsel,
delivered to the Warrantholder) to maintain any
license granted to the Company by the FCC, or to
maintain the Company's eligibility for any license
for which it has applied to the FCC. The
Warrantholder shall not be entitled to exercise this
Warrant, or any part thereof, unless and until such
approvals, certificates, legal opinions or other
documents are reasonably acceptable to the Company.
Unless a registration statement covering the
issuance of the Warrant Shares upon exercise of the
Warrant has been filed with the SEC and declared
effective and is then in effect, the cost of such
approvals, certificates, legal opinions and other
documents, if required, shall be borne by the
Warrantholder; provided, however, that the Company
shall bear such costs if the foregoing condition is
not fulfilled as a result of the Company's failure
to perform its obligations under Sections 7 and 8
hereof.
1.4 Warrant Shares Certificate. A stock certificate
or certificates for the Warrant Shares specified in
the Exercise Form shall be delivered to the
Warrantholder within 5 Business Days after receipt
of the Exercise Form and receipt of payment of the
purchase price. If this Warrant shall have been
exercised only in part, the Company shall, at the
time of delivery of the stock certificate or
certificates, deliver to the Warrantholder a new
Warrant evidencing the rights to purchase the
remaining Warrant Shares, which new Warrant shall in
all other respects be identical with this Warrant.
1.5 Payment of Taxes. The issuance of certificates
for Warrant Shares shall be made without charge to
the Warrantholder for any stock transfer or other
issuance tax in respect thereto; provided, however,
that the Warrantholder shall be required to pay any
and all taxes which may be payable in respect of any
transfer involved in the issuance and delivery of
any certificate in a name other than that of the
then Warrantholder as reflected upon the books of
the Company.
1.6 Divisibility of Warrant; Transfer of Warrant.
(a) Subject to the provisions of this
Section 1.6, this Warrant may be divided into
warrants of one thousand shares or multiples
thereof, upon surrender at the Company Office,
without charge to any Warrantholder. Upon such
division, the Warrants may be transferred of record
as the then Warrantholder may specify without charge
to such Warrantholder (other than any applicable
transfer taxes). In addition, subject to the
provisions of this Section 1.6, the Warrantholder
shall also have the right to transfer this
Warrant in its entirety to any person or entity.
(b) Upon surrender of this Warrant to the
Company with a duly executed Assignment Form and
funds sufficient to pay any transfer tax, the
Company shall, without charge, execute and deliver a
new Warrant or Warrants of like tenor in the name of
the assignee named in such Assignment Form, and this
Warrant shall promptly be canceled. Each
Warrantholder agrees that no later than the fourth
Business Day prior to any proposed transfer (whether
as the result of a division or otherwise) of this
Warrant, such Warrantholder shall give written
notice to the Company of such Warrantholder's
intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and, if
requested by the Company, shall be accompanied by a
written opinion of legal counsel, which opinion
shall be addressed to the Company and be reasonably
satisfactory in form and substance to the Company,
to the effect that the proposed transfer of this
Warrant may be effected without registration under
the Securities Act. In addition, the Warrantholder
and the transferee shall execute any documentation
reasonably required by the Company to ensure
compliance with the Securities Act or the applicable
exemption from registration thereunder. The
Warrantholder shall not be entitled to transfer this
Warrant, or any part thereof, if such legal opinion
is not acceptable to the Company or if such
documentation is not provided. The term "Warrant" as
used in this Agreement shall be deemed to include
any Warrants issued in substitution or exchange for
this Warrant.
2. Restrictions on Transfer; Restrictive Legends.
Except as otherwise permitted by this Section 2,
each Warrant shall (and each Warrant issued upon
direct or indirect transfer or in substitution for
any Warrant pursuant to Section 1.6 or Section 4
shall) be stamped or otherwise imprinted with a
legend in substantially the following form:
THIS WARRANT AND ANY SECURITIES
ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS
AND NEITHER THE SECURITIES NOR
ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN
EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND SUCH LAWS.
Except as otherwise permitted by this Section 2,
each stock certificate for Warrant Shares issued
upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect
transfer of any such Warrant Shares shall be
stamped or otherwise imprinted with
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES
NOR ANY INTEREST THEREIN MAY
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH
LAWS OR AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND SUCH LAWS.
Notwithstanding the foregoing, the Warrantholder may
require the Company to issue a Warrant or a stock
certificate for Warrant Shares, in each case without
a legend, if either (i) such Warrant or such Warrant
Shares, as the case may be, have been registered for
resale under the Securities Act or (ii) the
Warrantholder has delivered to the Company an
opinion of legal counsel, which opinion shall be
addressed to the Company and be reasonably
satisfactory in form and substance to the Company,
to the effect that such registration is not required
with respect to such Warrant or such Warrant Shares,
as the case may be.
3. Reservation and Registration of Shares, Etc.
The Company covenants and agrees as follows:
(a) all Warrant Shares which are issued upon the
exercise of this Warrant will, upon issuance, be
validly issued, fully paid, and nonassessable, not
subject to any preemptive rights, and free from all
taxes, liens, security interests, charges, and other
encumbrances with respect to the issue thereof,
other than taxes with respect to any transfer
occurring contemporaneously with such issue;
(b) during the period within which this Warrant may
be exercised, the Company will at all times have
authorized and reserved, and keep available free
from preemptive rights and any liens and
encumbrances, a sufficient number of shares of
Common Stock to provide for the exercise of the
rights represented by this Warrant; and
(c) the Company will, from time to time, take all
such action as may be required to assure that the
par value per share of the Warrant Shares is at
all times equal to or less than the then
effective Exercise Price.
4. Loss or Destruction of Warrant.
Subject to the terms and conditions hereof, upon
receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction
or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or
indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon
surrender and cancellation of this Warrant, the
Company will execute and deliver a new Warrant of
like tenor.
5. Ownership of Warrant.
The Company may deem and treat the person in whose
name this Warrant is registered as the holder and
owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other
than the Company) for all purposes and shall not be
affected by any notice to the contrary, until
presentation of this Warrant for registration of
transfer.
6. Certain Adjustments.
6.1 The number of Warrant Shares purchasable upon
the exercise of this Warrant and the Exercise Price
shall be subject to adjustment
as follows:
(a) Stock Dividends. If at any time after the date
of the issuance of this Warrant (i) the Company
shall fix a record date for the issuance of any
stock dividend payable in shares of Common Stock or
(ii) the number of shares of Common Stock shall have
been increased by a subdivision or split-up of
shares of Common Stock, then, on the record date
fixed for the determination of holders of Common
Stock entitled to receive such dividend or
immediately after the effective date of subdivision
or split-up, as the case may be, the number of
shares to be delivered upon exercise of this Warrant
will be increased so that the Warrantholder will be
entitled to receive the number of Shares of Common
Stock that such Warrantholder would have owned
immediately following such action had this Warrant
been exercised immediately prior thereto, and the
Exercise Price will be adjusted as provided below in
paragraph (h).
(b) Combination of Stock. If the number of shares
of Common Stock outstanding at any time after the
date of the issuance of this Warrant shall have been
decreased by a combination of the outstanding shares
of Common Stock, then, immediately after the
effective date of such combination, the number of
shares of Common Stock to be delivered upon exercise
of this Warrant will be decreased so that the
Warrantholder thereafter will be entitled to receive
the number of shares of Common Stock that such
Warrantholder would have owned immediately following
such action had this Warrant been exercised
immediately prior thereto, and the Exercise Price
will be adjusted as provided below in paragraph (h).
(c) Reorganization, etc. If any capital
reorganization of the Company, any reclassification
of the Common Stock, any consolidation of the
Company with or merger of the Company with or into
any other person, or any sale or lease or other
transfer of all or substantially all of the assets
of the Company to any other person, shall be
effected in such a way that the holders of Common
Stock shall be entitled to receive stock, other
securities or assets (whether such stock, other
securities or assets are issued or distributed by
the Company or another person) with respect to or in
exchange for Common Stock, then, upon exercise of
this Warrant, the Warrantholder shall have the right
to receive the kind and amount of stock, other
securities or assets receivable upon such
reorganization, reclassification, consolidation,
merger or sale, lease or other transfer by a holder
of the number of shares of Common Stock that such
Warrantholder would have been entitled to receive
upon exercise of this Warrant had this Warrant been
exercised immediately before such reorganization,
reclassification, consolidation, merger or sale,
lease or other transfer, subject to adjustments that
shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 6.
The Company shall not effect any such consolidation,
merger or sale, lease or other transfer, unless
prior to or simultaneously with the consummation
thereof, the successor person (if other than the
Company) resulting from such consolidation or
merger, or such person purchasing, leasing or
otherwise acquiring such assets, shall assume, by
written instrument, the obligation to deliver to the
Warrantholder the shares of stock, securities or
assets to which, in accordance with the foregoing
provisions, the Warrantholder may be entitled and
all other obligations of the Company under this
Warrant. The provisions of this paragraph (c) shall
apply to successive reorganizations,
reclassifications, consolidations, mergers, sales,
leasing transactions and other transfers.
(d) Stock and Rights Offering at Less than
Fair Market Value. If at any time after the date of
issuance of this Warrant, the Company shall issue to
all holders of its Common Stock or sell or fix a
record date for the issuance to all holders of its
Common Stock of (A) Common Stock or (B) rights,
options or warrants entitling the holders thereof to
subscribe for or purchase Common Stock (or
securities convertible or exchangeable into or
exercisable for Common Stock), in any such case, at
a price per share (or having a conversion, exchange
or exercise price per share) that is less than Fair
Market Value (as defined in Section 17 hereof) on
the date of such issuance or such record date, and
the Warrantholder does not elect to participate
pursuant to Section 6.2 hereof, then immediately
after the date of such issuance or sale or on such
record date, the number of shares of Common Stock to
be delivered upon exercise of this Warrant shall be
increased so that the Warrantholder thereafter will
be entitled to receive the number of shares of
Common Stock determined by multiplying the number of
shares of Common Stock such Warrantholder would have
been entitled to receive immediately before the date
of such issuance or sale or such record date by a
fraction, the denominator of which will be the
number of shares of Common Stock outstanding on such
date plus the number of shares of Common Stock that
the aggregate offering price of the total number of
shares so offered for subscription or purchase (or
the aggregate initial conversion price, exchange
price or exercise price of the convertible
securities or exchangeable securities or rights,
options or warrants, as the case may be, so offered)
would purchase at such Fair Market Value, and the
numerator of which will be the number of shares of
Common Stock outstanding on such date plus the
number of additional shares of Common Stock offered
for subscription or purchase (or into which the
convertible or exchangeable securities or rights,
options or warrants so offered are initially
convertible or exchangeable or exercisable, as the
case may be), and the Exercise Price shall be
adjusted as provided below in paragraph (h).
(e) Distributions to All Holders of Common
Stock. If the Company shall, at any time after the
date of issuance of this Warrant, fix a record date
to distribute to all holders of its Common Stock,
any shares of capital stock of the Company (other
than Common Stock) or evidences of its indebtedness
or assets (not including cash dividends and
distributions paid from retained earnings of the
Company) or rights or warrants to subscribe for or
purchase any of its securities, then the
Warrantholder shall be entitled to receive, upon
exercise of the Warrant, that portion of such
distribution to which it would have been entitled
had the Warrantholder exercised its Warrant
immediately prior to the date of such distribution.
At the time it fixes the record date for such
distribution, the Company shall allocate sufficient
reserves to ensure the timely and full performance
of the provisions of this Section 6.1(e). The
Company shall promptly (but in any case no later
than five Business Days prior to the record date of
such distribution) give notice to the Warrantholder
that such distribution will take place.
(f) Fractional Shares. No fractional shares
of Common Stock or scrip shall be issued to any
Warrantholder in connection with
the exercise of this Warrant. Instead of any
fractional shares of Common Stock
that would otherwise be issuable to such
Warrantholder, the Company will pay to
such Warrantholder a cash adjustment in respect of
such fractional interest in
an amount equal to that fractional interest of the
then current Fair Market Value per share of Common
Stock.
(g) Carryover. Notwithstanding any other
provision of this Section 6, no adjustment shall be
made to the number of shares of Common Stock to be
delivered to the Warrantholder (or to the Exercise
Price) if such adjustment represents less than 1% of
the number of shares to be so delivered, but any
lesser adjustment shall be carried forward and shall
be made at the time and together with the next
subsequent adjustment which together with any
adjustments so carried forward shall amount to 1% or
more of the number of shares to be so delivered.
(h) Exercise Price Adjustment. Whenever the number
of Warrant Shares purchasable upon the exercise of
this Warrant is adjusted, as herein provided, the
Exercise Price payable upon the exercise of this
Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment
by a fraction, of which the numerator shall be the
number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be
the number of Warrant Shares purchasable immediately
thereafter.
6.2 Rights Offering. In the event the Company shall
effect an offering of Common Stock pro rata among
its stockholders, the Warrantholder shall be
entitled to elect to participate in each and every
such offering as if this Warrant had been exercised
immediately prior to each such offering. The Company
shall promptly (but in any case no later than five
Business Days prior to such rights offering) give
notice to the Warrantholder that such rights
offering will take place. The Company shall not be
required to make any adjustment with respect to the
issuance of shares of Common Stock pursuant to a
rights offering in which the holder hereof elects to
participate under the provisions of this Section
6.2.
6.3 Notice of Adjustments. Whenever the number of
Warrant Shares or the Exercise Price of such Warrant
Shares is adjusted, as herein provided, the Company
shall promptly give to the Warrantholder notice of
such adjustment or adjustments and a certificate of
a firm of independent public accountants of
recognized national standing selected by the Board
of Directors of the Company (who shall be appointed
at the Company's expense and who may be the
independent public accountants regularly employed by
the Company) setting forth the number of Warrant
Shares and the Exercise Price of such Warrant Shares
after such adjustment, a brief statement of the
facts requiring such adjustment, and the computation
by which such adjustment was made.
6.4 Notice of Extraordinary Corporate Events. In
case the Company after the date hereof shall propose
to (i) distribute any dividend (whether stock or
cash or otherwise) to the holders of shares of
Common Stock or to make any other distribution to
the holders of shares of Common Stock, (ii) offer to
the holders of shares of Common Stock rights to
subscribe for or purchase any additional shares of
any class of stock or any other rights or options,
or (iii) effect any reclassification of the Common
Stock (other than a reclassification involving
merely the subdivision or combination of outstanding
shares of Common Stock), any capital reorganization,
any consolidation or merger (other than a merger in
which no distribution of securities or other
property is to be made to holders of shares of
Common Stock), any sale or lease or transfer
or other disposition of all or substantially all of
its property, assets and business, or the
liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall
give to each Warrantholder notice of such proposed
action, which notice shall specify the date on which
(a) the books of the Company shall close, or (b) a
record shall be taken for determining the holders of
Common Stock entitled to receive such stock
dividends or other distribution or such rights or
options, or (c) such reclassification,
reorganization, consolidation, merger, sale,
transfer, other disposition, liquidation,
dissolution or winding up shall take place or
commence, as the case may be, and the date, if any,
as of which it is expected that holders of record of
Common Stock shall be entitled to receive securities
or other property deliverable upon such action. Such
notice shall be given in the case of any action
covered by clause (i) or (ii) above at least ten
days prior to the record date for determining
holders of Common Stock for purposes of receiving
such payment or offer, or in the case of any action
covered by clause (iii) above at least 30 days prior
to the date upon which such action takes place and
20 days prior to any record date to determine
holders of Common Stock entitled to receive such
securities or other property.
6.5 Effect of Failure to Notify. Failure to file any
certificate or notice or to give any notice, or any
defect in any certificate or notice, pursuant to
Sections 6.3 and 6.4 shall not affect the legality
or validity of the adjustment to the Exercise Price,
the number of shares purchasable upon exercise of
this Warrant, or any transaction giving rise
thereto.
7. Registration Rights.
7.1 On or before December 31, 2001 , the
"Registration Deadline"), the Company shall use its
best efforts to register for resale the Registrable
Securities with the SEC pursuant to a "shelf"
registration on Form S-3 (if available) or Form S-1
(if Form S-3 is not available) and to obtain all
other necessary approvals, including that of the FCC
(if required), for the resale of such Registrable
Securities. If in the opinion of counsel for the
Company a post-effective amendment to an existing
registration statement would be legally sufficient
for such resale, the Company shall use its best
efforts to register for resale the Registrable
Securities pursuant to such a post-effective
amendment within 90 days after the Registration
Deadline.
7.3 If (A) the registration statement covering all
Registrable Securities is not effective by
Registration Deadline, or (B) at any time after the
registration statement has been declared effective,
the SEC suspends the effectiveness of the
registration statement or the Company suspends the
use of the prospectus used in connection with such
registration statement for an aggregate of more than
60 calendar days (the "Cumulative Suspension") in
any twelve-month period (taking into account all
such suspensions), then the Company shall (in
addition to any other remedies available to such
holders at law or equity) pay to each Holder (other
than, in the case of (A) above, any Holder all of
whose shares of Registrable Securities were included
in a registration statement declared effective by
the date therein specified) a cash payment (the
"Registration Payment Amount") in an amount equal to
0.25% of the sum of (i) the fair market value of the
Warrants held by such Holder and (ii) the excess of
(x) the Fair Market Value of all shares of Common
Stock issued to such Holder upon exercise of the
Warrant and then owned by such Holder over (y)
$50.00. The Registration Payment Amount shall accrue
at a rate of 1/30th of the Registration Payment
Amount for each day (A) in the period following the
Registration Deadline until the registration
statement is declared effective or (B) during the
Cumulative Suspension. Any cash payment required to
be made pursuant to this Section 7.3 shall be due
and payable within 10 days of the end of any month
in which (A) the registration statement has yet to
become effective following the Registration Deadline
or (B) any such Cumulative Suspension occurs. For
the purposes of this Section 7.3, all determinations
of value shall be made as of the last day of the
immediately preceding month.
8. Obligations of the Company. In connection with
the registration of the Registrable Securities as
contemplated by Section 7.1, the Company shall:
8.1 prepare and file with the SEC a registration
statement or statements or similar documents (the
"Registration Statement") with respect to all
Registrable Securities, and thereafter use its
best efforts to cause the Registration Statement
to become effective and keep the Registration
Statement effective pursuant to Rule 415 at
all times until the date that is two years
after the date upon which this Warrant has
been exercised in full, which Registration Statement
(including any amendments or supplements thereto and
prospectuses contained therein) shall 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, in
light of the circumstances in which
they were made, not misleading;
8.2 prepare and file with the SEC such amendments
(including post-effective amendments) and
supplements to the Registration Statement and
the prospectus used in connection with
the Registration Statement as may be necessary to
keep the Registration Statement effective and to
comply with the provisions of the Securities Act
with respect to the disposition of all Registrable
Securities covered by the Registration Statement
until such time as the Company is no longer required
hereunder to keep such Registration Statement
effective.
8.3 furnish to each Holder whose Registrable
Securities are included in the Registration
Statement such number of copies of a prospectus,
including a preliminary prospectus and all
amendments and supplements thereto and such other
documents, as such Holder may reasonably request in
order to facilitate the disposition of the
Registrable Securities owned by such Holder;
8.4 (i) in the event Holders who hold a majority in
interest of the Registrable Securities select
underwriters for the offering, enter into and
perform its obligations under an underwriting
agreement with the managing underwriter of such
offering, in usual and customary form, including,
without limitation, customary indemnification and
contribution obligations, (ii) in the case of any
non-underwritten offering, provide to broker-dealers
participating in any distribution of Registrable
Securities reasonable indemnification substantially
similar to that provided by Section 11.1 and (iii)
in either case, make available one of its executive
officers to respond to questions relating to such
offering from prospective purchasers of Registrable
Securities during normal business hours;
8.5 promptly notify each Holder of the happening of
any event of which the Company has knowledge, as a
result of which the prospectus included in the
Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to
state a material fact required to be stated therein
or necessary to make the statements therein, in
light of the circumstances then existing, not
misleading, and use its best efforts to prepare
promptly, and in all cases within 30 days, a
supplement or amendment to the Registration
Statement to correct such untrue statement or
omission, and deliver a number of copies of such
supplement or amendment to each Holder as such
Holder may reasonably request;
8.6 promptly notify each Holder who holds
Registrable Securities being sold (or, in the event
of an underwritten offering, the managing
underwriters) of the issuance by the SEC of any stop
order or other suspension of effectiveness of the
Registration Statement, and make every reasonable
effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration
Statement at the earliest possible time;
8.7 permit counsel for Acibar Investments
International, Ltd. ("Acibar") as well as a single
firm of counsel designated as selling stockholders'
counsel by the Holders who hold a majority in
interest of the Registrable Securities (not
including Registrable Securities held by Acibar)
being sold to review the Registration Statement and
all amendments and supplements thereto a reasonable
period of time prior to their filing with the SEC,
and shall not file any document in a form to which
either such counsel reasonably objects;
8.8 make generally available to its security holders
as soon as practical, but not later than ninety (90)
days after the close of the period covered thereby,
an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act)
covering a twelve-month period
beginning not later than the first day of the
Company's fiscal quarter next following the
effective date of the Registration Statement;
8.9 at the request of the Holders who hold a
majority in interest of the Registrable Securities
being sold, furnish on the date that Registrable
Securities are delivered to an underwriter for sale
in connection with the Registration Statement (i) a
letter, dated such date, from the Company's
independent certified public accountants, in form
and substance as is customarily given by independent
certified public accountants to underwriters in an
underwritten public offering, addressed to the
underwriters; and (ii) an opinion, dated such date,
from counsel representing the Company for purposes
of such Registration Statement, in form and
substance as is customarily given to underwriters in
an underwritten public offering, addressed to the
underwriters;
8.10 make available for inspection by any Holder,
any underwriter participating in any disposition
pursuant to the Registration Statement, and any
attorney, accountant, or other agent retained by any
such Holder or underwriter (collectively, the
"Inspectors"), all pertinent financial and other
records, pertinent corporate documents and
properties of the Company, as shall be reasonably
necessary to enable each Inspector to exercise its
due diligence responsibility, and cause the
Company's officers, directors and employees to
supply all information reasonably requested by any
such Inspector in connection with the Registration
Statement;
8.11 use its best efforts to cause all the
Registrable Securities covered by the Registration
Statement to be listed on each national securities
exchange on which similar securities issued by the
Company are then listed, if any, if the listing of
such Registrable Securities is then permitted under
the rules of such exchange;
8.12 provide a transfer agent and registrar, which
may be a single entity, for the Registrable
Securities not later than the effective date
of the Registration Statement; and
8.13 cooperate with the Holders who hold Registrable
Securities being sold and the managing underwriter
or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not
bearing any restrictive legends) representing
Registrable Securities to be sold pursuant to the
Registration Statement and enable such certificates
to be in such denominations or amounts, as the case
may be, and registered in such names as the managing
underwriter or underwriters, if any, or the Holders
may reasonably request.
9. Obligations of the Holders.
9.1 It shall be a condition precedent to the
obligations of the Company to take any action
pursuant to this Agreement with respect to each
Holder that such Holder shall furnish to the Company
such information regarding itself, the Registrable
Securities held by it and the intended method of
disposition of such securities as shall be
reasonably required to effect the registration of
the Registrable Securities and shall execute such
documents and agreements in connection with such
registration as the Company may reasonably request.
At least twelve days prior to the first anticipated
filing date of the Registration Statement, the
Company shall notify each Holder of the information
the Company requires from each such Holder (the
"Requested Information"). If within five Business
Days of the filing date the Company has not received
the Requested Information from a Holder (a
"NonResponsive Holder"), then the Company may file
the Registration Statement without including
Registrable Securities of such Non-Responsive Holder
and the Company shall have no further obligation to
such Non-Responsive Holder under Section 7 or
Section 8 of this Warrant;
9.2 Each Holder, by his acceptance of the
Registrable Securities, agrees to cooperate with the
Company in connection with the preparation and
filing of any registration statement hereunder,
unless such Holder has notified the Company in
writing of his election to exclude all of his
Registrable Securities from the Registration
Statement.
9.3 In the event Holders holding a majority in
interest of the Registrable Securities select
underwriters for the offering, each Holder agrees to
enter into and perform his obligations under an
underwriting agreement, in usual and customary form,
including without limitation customary
indemnification and contribution obligations
(provided that any such indemnification and
contribution shall be expressly limited to losses
incurred relating to misstatements or omissions in
information provided by such Holder specifically for
use in the Registration Statement, and then only to
the extent of net proceeds to such Holder as a
result of the sale of Registrable Securities
pursuant to such Registration Statement), with the
managing underwriter of such offering and take such
other actions as are reasonably required in order to
expedite or facilitate the disposition of the
Registrable Securities, unless such Holder has
notified the Company in writing of his election to
exclude all of his Registrable Securities from the
Registration Statement.
9.4 Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any
event of the kind described in Section 8.5, such
Holder will immediately discontinue disposition of
Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until
such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by
Section 8.5 and, if so directed by the Company, such
Holder shall deliver to the Company (at the expense
of the Company) or destroy (and deliver to the
Company a certificate of such destruction) all
copies, other than permanent file copies then in
such Holder's possession, of the prospectus covering
such Registrable Securities current at the time of
receipt of such notice; and
9.5 No Holder may participate in any underwritten
registration hereunder unless such Holder (i) agrees
to sell such Holder's Registrable Securities on the
basis provided in any underwriting arrangements
approved by the Holders entitled hereunder to
approve such arrangements, (ii) completes and
executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other
documents reasonably required under the terms
of such underwriting arrangements and (iii) agrees
to pay such Holder's pro rata portion of all
underwriting discounts and commissions.
10. Expenses of Registration. With respect to a
registration under Section 7, all expenses other
than fees and disbursements of counsel for
the Holders and underwriting discounts and
commissions incurred in connection
with registration, filings or qualifications
pursuant to Section 8, including, without
limitation, all registration, listing, filing and
qualification fees, printers and accounting fees,
and the fees and disbursements of counsel for the
Company shall be borne by the Company.
Notwithstanding the preceding sentence, the Company
shall pay the reasonable fees and disbursements of
counsel for Acibar and of a single firm of counsel
designated as selling stockholders' counsel by the
Holders who hold a majority in interest of the
Registrable Securities being sold.
11. Indemnification. In the event any Registrable
Securities are included in a Registration Statement
under this Agreement:
11.1 To the extent permitted by law, the Company
will indemnify and hold harmless each Holder who
holds such Registrable Securities, the directors, if
any, of such Holder, the officers, if any, of such
Holder, who sign the Registration Statement, each
person, if any, who controls such Holder, any
underwriter (as defined in the Securities Act) for
the Holders, and each person, if any, who controls
any such underwriter within the meaning of the
Securities Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act") (each, an
"Indemnified Holder") against any losses, claims,
damages, expenses, liabilities (joint or several)
(collectively, "Claims") to which any of them may
become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims
(or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are
based upon any of the following statements,
omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or any post-effective
amendment thereof, or the omission or alleged
omission to state therein a material fact required
to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material
fact contained in any preliminary prospectus if used
prior to the effective date of such Registration
Statement, or contained in the final prospectus (as
amended or supplemented if the Company files any
amendment thereof or supplement thereto with the
SEC), or the omission or alleged omission to state
therein a material fact required to be stated
therein, or necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading, or (iii)
any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, the Federal
Communications Act, any state securities law, or any
rule or regulation promulgated under the Securities
Act, the Exchange Act, the Federal Communications
Act or any state securities law. Subject to the
restrictions set forth in Section 11.3 with respect
to the number of legal counsel, the Company shall
reimburse each Indemnified Holder, promptly as such
expenses are incurred and are due and payable, for
any legal fees and expenses or other reasonable
expenses incurred by them in connection with
investigating or defending any such Claim, whether
or not such claim, investigation or proceeding is
brought or initiated by the Company or a third
party. If multiple claims are brought against an
Indemnified Holder in an arbitration proceeding, and
indemnification is permitted under applicable law
and is provided for under this Section 11 with
respect to at least one such claim, the Company
agrees that any arbitration award shall be
conclusively deemed to be based on claims as to
which indemnification is permitted and provided for,
except to the extent the arbitration award expressly
states that the award, or any portion thereof, is
based solely on a claim as to which indemnification
is not available. Notwithstanding anything to the
contrary contained herein, the indemnification
agreement contained in this Section 11.1 (a) shall
not apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in
conformity with information furnished in writing to
the Company by any Indemnified Holder expressly for
use in connection with the preparation of the
Registration Statement or any such amendment thereof
or supplement thereto; and (b) shall not apply to
amounts paid in settlement of any Claim if such
settlement is effected without the prior written
consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain
in full force and effect regardless of any
investigation made by or on behalf of the
Indemnified Holder and shall survive the transfer of
the Registrable Securities by the Holders pursuant
to Section 14.
1.2 In connection with any Registration Statement in
which a older is participating, each such Holder
agrees to indemnify and hold harmless, to the same
extent and in the same manner set forth in Section
11.1, the Company, each of its directors, each of
its officers who sign the Registration Statement,
each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange
Act, any underwriter and any other stockholder
selling securities pursuant to the Registration
Statement or any of its directors or officers or any
person who controls such stockholder or underwriter
(collectively and together with an Indemnified
Holder, an "Indemnified Party"), against any Claim
to which any of them may become subject, under the
Securities Act, the Exchange Act or otherwise,
insofar as such Claim arises out of or is based upon
any Violation, in each case to the extent (and only
to the extent) that such Violation occurs in
reliance upon and in conformity with written
information furnished to the Company by such Holder
expressly for use in connection with such
Registration Statement; and such Holder will
reimburse any legal or other expenses reasonably
incurred by them in connection with investigating or
defending any such Claim; provided, however, that
the indemnity agreement contained in this Section
11.2 shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without
the prior written consent of such Holder, which
consent shall not be unreasonably withheld;
provided, further, that the Holder shall be liable
under this Section 11.2 for only that amount of a
Claim as does not exceed the net proceeds to such
Holder as a result of the sale of Registrable
Securities pursuant to such Registration Statement.
11.3 Promptly after receipt by an Indemnified Party
under this Section 11 of notice of the commencement
of any action (including any governmental action),
such Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party
under this Section 11, deliver to the indemnifying
party a written notice of the commencement thereof,
and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying
party so desires, jointly with any other
indemnifying party similarly noticed, to assume
control of the defense thereof with counsel
satisfactory to the Indemnified Parties; provided,
however, that an Indemnified Party shall have the
right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if,
in the reasonable opinion of counsel for the
Indemnified Party, representation of such
Indemnified Party by the counsel retained by the
indemnifying party would be inappropriate due to
actual or potential differing interests between such
Indemnified Party and any other party represented by
such counsel in such proceeding. The Company shall
pay for only one legal counsel for the Holders; such
legal counsel shall be selected by the Holders
holding a majority in interest of the Registrable
Securities. The failure to give written notice to
the indemnifying party within a reasonable time of
the commencement of any such action shall not
relieve such indemnifying party of any liability to
the Indemnified Party under this Section 11, except
to the extent that such failure to notify results in
the forfeiture by the indemnifying party of valid
rights or defenses. The indemnification required by
this Section 11 shall be made by periodic payments
of the amount thereof during the course of the
investigation or defense, as such expense, loss,
damage or liability is incurred and is due and
payable.
12. Contribution. To the extent any indemnification
by an indemnifying party is prohibited or limited by
law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 11
to the fullest extent permitted by law; provided,
however, that (i) no contribution shall be made
under circumstances where the maker would not have
been liable for indemnification under the fault
standards set forth in Section 11, (ii) no seller of
Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable
Securities who was not guilty of such fraudulent
misrepresentation and (iii) contribution by any
seller of Registrable Securities shall be limited in
amount to the net amount of proceeds received by
such seller from the sale of such Registrable
Securities.
13. Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the
benefits of Rule 144 promulgated under the
Securities Act or any other similar rule or
regulation of the SEC that may at any time permit
the Holders to sell securities of the Company to the
public without registration ("Rule 144"), the
Company agrees to:
13.1 make and keep public information available, as
those terms are understood and defined in Rule 144,
at all times;
13.2 file with the SEC in a timely manner all
reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
13.3 furnish to each Holder so long as such Holder
owns Registrable Securities, promptly upon request,
(i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144
(at any time after 90 days after the effective date
of the first registration statement filed by the
Company), the Securities Act and the Exchange Act
(at any time after it has become subject to such
reporting requirements), (ii) a copy of the most
recent annual or quarterly report of the Company and
such other reports and documents so filed by the
Company, and (iii) such other information as may be
reasonably requested to permit the Holders to sell
such securities without registration.
14. Assignment of Registration Rights. The right to
have the Company register Registrable Securities
pursuant to this Warrant shall be automatically
assigned by the Holders to transferees or assignees
of this Warrant or such Registrable Securities,
provided that immediately following such transfer or
assignment, the further disposition of such
securities by the transferee or assignee would be
subject to restrictions on resale under the
Securities Act. The term "Holders" as used herein
shall include permitted assignees and transferees.
15. Amendments. Any provision of this Warrant
(including registration rights) may be amended and
the observance thereof 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 Holders who
hold a majority in interest of the Registrable
Securities. Any amendment or waiver effected in
accordance with this Section 15 shall be binding
upon each Holder and the Company.
16. Expiration of the Warrant. Except with respect
to Sections 11, 12, and 13, the obligations of the
Company pursuant to this Warrant shall terminate on
the Expiration Date.
17. Definitions.
As used herein, unless the context otherwise
requires, the following terms have the following
respective meanings:
Assignment Form: an Assignment
Form in the form annexed hereto as Exhibit B.
Board: the Board of Directors of
the Company.
Business Day: any day other than
a Saturday, Sunday or a day on which national banks
are authorized by law to close in The City of New
York, State of New York.
Bylaws: the bylaws of the
Company, as the same may have been amended and in
effect as of June 15, 2001.
Certificate of Incorporation: the
Certificate of Incorporation
of the Company, as the same may have been amended
and in effect as of June 15, 2001.
Change in Control: a change in
control over the Company occurring prior to the
Expiration Date of a nature that would be required
to be reported by the Company in response to either
(a) Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, or (b) Item 1(a)
of Form 8-K, each as in effect on the date hereof,
whether or not the Company is then subject to such
reporting requirements; provided that, without
limitation of the foregoing, a Change in Control
shall be deemed to have occurred if, prior to the
Expiration Date:
(i) there shall be consummated (A)
any consolidation, merger or recapitalization of the
Company or any similar transaction involving the
Company pursuant to which shares of the Company's
Common Stock would be converted into cash,
securities or other property, other than a merger of
the Company in which the holders of Common Stock
immediately prior to the merger have the same
proportion and ownership of common stock of the
surviving corporation immediately after the merger,
(B) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions)
of all or substantially all of the assets of the
Company or (C) the adoption of a plan of complete
liquidation of the Company (whether or not in
connection with the sale of all or substantially all
of the Company's assets) or a series of partial
liquidations of the Company that is de jure or de
facto part of a plan of complete liquidation of the
Company; provided, that the divestiture of less than
substantially all of the assets of the Company in
one transaction or a series of related transactions,
whether effected by sale, lease, exchange, spin-off,
sale of the stock or merger of a subsidiary or
otherwise, or a transaction solely for the purpose
of reincorporating the Company in another
jurisdiction, shall not constitute a Change in
Control; or
(ii) during any period of not more
than 24 consecutive months
(not including any period prior to June 15, 2001)
there shall cease to be a majority of the Board
constituted as follows: individuals who at the
beginning of such period were members of the Board
and any new director(s) whose election by the Board
or nomination for election by the Company's
stockholders was approved by a vote of at least two-
thirds of the directors then still in office who
either were directors at the beginning of the period
or whose election or nomination for election was
previously so approved.
Call Date: the meaning specified in
Section 1.2.
Call Price: the meaning specified in
Section 1.2.
Callable Time: the meaning specified
in Section 1.2.
Claims: the meaning specified in
Section 11.1.
Common Stock: the meaning specified on
the cover of this Warrant.
Company: the meaning specified on the
cover of this Warrant.
Company Office: the meaning specified
in Section 1.2.
Contractual Obligation: as to any
Person, any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other
instrument to which such Person is a party or by
which it or any of its property is bound.
Cumulative Suspension: the meaning
specified in Section 7.3.
Acibar: Acibar Investments
International, Ltd.
Exchange Act: the meaning specified in
Section 11.1 or any similar
Federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in
effect at the time. Reference to a particular
section of the Exchange Act shall include a
reference to a comparable section, if any, of any
such similar Federal statute.
Exercise Form: an Exercise Form in the
form annexed hereto as
Exhibit A.
Exercise Price: the meaning specified
on the cover of this
Warrant.
Expiration Date: the meaning
specified on the cover of this
Warrant.
Fair Market Value: With respect to
a share of Common Stock as
of a particular date (the "Determination Date"):
If the Common Stock is listed or admitted for
trading on a national securities exchange, then the
Fair Market Value shall be the average of the last
30 "daily sales prices" of the Common Stock on the
principal national securities exchange on which the
Common Stock is listed or admitted for trading on
the last 30 Business Days prior to the Determination
Date, or if not listed or traded on any such
exchange, then the Fair Market Value shall be the
average of the last 30 "daily sales prices" of the
Common Stock on the Nasdaq National Market or the
Nasdaq SmallCap Market, as applicable, on the last
30 Business Days prior to the Determination Date.
The "daily sales price" shall be the closing price
of the Common Stock at the end of each day; or
If the Common Stock is not so listed or admitted to
unlisted trading privileges or if no such sale is
made on at least 25 of such days, then the Fair
Market Value shall be as reasonably determined in
good faith by the Board or a duly appointed
committee of the Board (which determination shall be
reasonably described in the written notice given to
the Warrantholder together with the Common Stock
certificates).
FCC: the Federal Communications
Commission.
Governmental Authority: the
government of any nation, state, city, locality or
other political subdivision of any thereof, and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or
pertaining to government or any International
regulatory body
having or asserting jurisdiction over a Person, its
business or its properties.
Holder(s): holder(s) of
Registrable Securities.
Indemnified Holder: the meaning
specified in Section 11.1.
Indemnified Party: the meaning
specified in Section 11.2.
Inspectors: the meaning specified
in Section 8.11.
Lien: any mortgage, deed of trust,
pledge, hypothecation, assignment, encumbrance, lien
(statutory or other), restriction or other security
interest of any kind or nature whatsoever.
Nasdaq: the National Association
of Securities Dealers Automated Quotations
System.
Non-Responsive Holder: the meaning
specified in Section 9.2.
Person: any individual, firm,
corporation, partnership, limited liability company,
trust, incorporated or unincorporated association,
joint venture, joint stock company, Governmental
Authority or other entity of any kind.
Ravich: The Ravich Revocable Trust of
1989.
Registrable Securities: (i) the
Warrant Shares and other securities issued or
issuable upon exercise of this Warrant and (ii) any
securities issued or issuable with respect to any
Common Stock or other securities referred to in
subdivision (i) by way of stock dividend or stock
split or in connection with a combination or other
reorganization or otherwise.
Registration Deadline: the meaning
specified in Section 7.1.
Registration Payment Amount: the
meaning specified in Section 7.3.
Registration Statement: the meaning
specified in Section 8.1.
Requested Information: the meaning
specified in Section 9.1.
Requirement of Law: as to any Person,
the Certificate of Incorporation and Bylaws or other
organizational or governing documents of such
Person, and any law, treaty, rule, regulation,
qualification, license or franchise or determination
of an arbitrator or a court or other Governmental
Authority, in each case applicable or binding upon
such Person or any of its property or to which such
Person or any of its property is subject or
pertaining to any or all of the transactions
contemplated hereby.
Rule 144: the meaning specified in
Section 13.
Rule 415: Rule 415 under the
Securities Act or any successor rule providing for
offering securities on a continuous basis.
SCDR: Proteque Corporation.
SEC: the Securities and Exchange
Commission or any other
Federal agency at the time administering the
Securities Act or the Exchange Act,
whichever is the relevant statute for the particular
purpose.
Securities Act: the meaning
specified on the cover of this Warrant, or any
similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the
same shall be in effect at the time. Reference to a
particular section of the Securities Act, shall
include a reference to the comparable section, if
any, of any such similar Federal statute.
Subsidiary: in respect of any
Person, any other Person of which, at the time as of
which any determination is made, such Person or one
or more of its Subsidiaries has, directly or
indirectly, voting control.
Violation: the meaning specified
in Section 11.1.
Warrantholder: the meaning
specified on the cover of this Warrant.
Warrant Shares: the meaning
specified on the cover of this Warrant.
18. Miscellaneous.
18.1 Entire Agreement. This Warrant constitutes the
entire agreement between the Company and the
Warrantholder with respect to the Warrants.
18.2 Binding Effects; Benefits. This Warrant shall
inure to the benefit of and shall be binding upon
the Company and the Warrantholder and their
respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or
implied, is intended to or shall confer on any
person other than the Company and the Warrantholder,
or their respective heirs, legal representatives,
successors or assigns, any rights, remedies,
obligations or liabilities under or by reason of
this Warrant.
18.3 Section and Other Headings. The section and
other headings contained in this Warrant are for
reference purposes only and shall not be deemed to
be a part of this Warrant or to affect the meaning
or interpretation of this Warrant.
18.4 Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
18.5 Further Assurances. Each of the Company and the
Warrantholder shall do and perform all such further
acts and things and execute and deliver all such
other certificates, instruments and documents as the
Company or the Warrantholder may, at any time and
from time to time, reasonably request in connection
with the performance of any of the provisions of
this Agreement.
18.6 Notices. All notices and other communications
required or permitted to be given under this Warrant
shall be in writing and shall be deemed to have been
duly given if (i) delivered personally or (ii) sent
by facsimile or overnight courier as well as by
United States first class certified mail, postage
prepaid, to the parties hereto at the following
addresses or to such other address as any party
hereto shall hereafter specify by notice to the
other party hereto:
(a) if to the Company, addressed to:
Proteque Corporation
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
-and-
(b) if to the Warrantholder, addressed to:
XX Xxx 000
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Attn: Xxxx Xxxxxxx
Except as otherwise provided herein, all such
notices and communications shall be deemed to have
been received on the date of delivery thereof, if
delivered personally or sent by facsimile, on the
second Business Day following delivery into the
custody of an overnight courier service, if sent by
overnight courier, provided that such delivery is
made before such courier's deadline for next-day
delivery, or on the third Business Day after the
mailing thereof.
18.7 Separability. Any term or provision of this
Warrant which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or
unenforceability without rendering invalid or
unenforceable the terms and provisions of this
Warrant or affecting the validity or enforceability
of any of the terms or provisions of this Warrant in
any other jurisdiction.
18.8 Governing Law. This Warrant shall be deemed to
be a contract made under the laws of New York and
for all purposes shall be governed by and construed
in accordance with the laws of such State applicable
to such agreements made and to be performed entirely
within such State.
18.9 No Rights or Liabilities as Stockholder.
Nothing contained in this Warrant shall be
determined as conferring upon the Warrantholder any
rights as a stockholder of the Company or as
imposing any liabilities on the Warrantholder to
purchase any securities whether such liabilities are
asserted by the Company or by creditors or
stockholders of the Company or otherwise.
18.10 Representations of the Company. The Company
hereby represents and warrants, as of the date
hereof, to the Warrantholder as follows:
(a) Corporate Existence and Power. The Company (i)
is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of
Delaware; (ii) has all requisite corporate power and
authority to own and operate its property, to lease
the property it operates as lessee and to conduct
the business in which it is engaged; and (iii) has
the corporate power and authority to execute,
deliver and perform its obligations under this
Warrant. The Company is duly qualified to do
business as a foreign corporation in, and is in good
standing under the laws of, each jurisdiction in
which the conduct of its business or the nature of
the property owned requires such qualification.
(b) Subsidiaries. Except for SCDR, the
Company has no Subsidiaries. SCDR has been duly
organized, is validly existing and in good standing
under the laws of the jurisdiction of its
organization, has the power and authority (corporate
or otherwise) to own its properties and to conduct
its business and is duly registered, qualified and
authorized to transact business and is in good
standing in each jurisdiction in which the conduct
of its business or the nature of its properties
requires such registration, qualification or
authorization. All of the issued and outstanding
capital stock (or equivalent interests) of SCDR has
been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company
free and clear of any Liens and there are no rights,
options or warrants outstanding or other agreements
to acquire shares of capital stock (or equivalent
interests) of SCDR.
(c) Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company
of this Warrant and the transactions contemplated
hereby, including, without limitation, the sale,
issuance and delivery of the Warrant Shares, (i)
have been duly authorized by all necessary corporate
action of the Company; (ii) do not contravene the
terms of the Certificate of Incorporation or Bylaws
or the organizational documents of SCDR; and (iii)
do not violate, conflict with or result in any
breach or contravention of, or the creation of any
Lien under, any Contractual Obligation of the
Company or any Requirement of Law applicable to the
Company or SCDR. No event has occurred and no
condition exists which, upon notice or the passage
of time (or both), would constitute a default under
any indenture, mortgage, deed of trust, credit
agreement, note or other evidence of indebtedness or
other material agreement of the Company or SCDR or
the Certificate of Incorporation or Bylaws or the
organizational documents of SCDR.
(d) Issuance of Warrant Shares. The Warrant
Shares have been duly authorized and reserved for
issuance. When issued, such shares will be validly
issued, fully paid and non-assessable, and free and
clear of all liens, claims, encumbrances and
preemptive rights, and the holders thereof shall be
entitled to all rights and preferences accorded to a
holder of Common Stock.
(e) Binding Effect. This Warrant has been duly
executed and delivered by the Company and
constitutes the legal, valid and binding obligation
of the Company enforceable against the Company in
accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or
other similar laws affecting the enforcement of
creditors' rights generally and by general
principles of equity.
18.11 FCC Approval.
(a) The Company hereby covenants that it will use
reasonable best efforts to secure FCC approval of
any proposed exercise of this Warrant if receipt of
such approval is a condition of such exercise
pursuant to Section 1.3 hereof. Such reasonable best
efforts shall include, without limitation, the
filing with the FCC of necessary submissions seeking
such FCC approval.
(b) Provided that on or before the Expiration Date
the Company has received notice from the
Warrantholder of its intention to exercise the
Warrant, if such exercise on or before the
Expiration Date is prevented solely by reason of the
non-receipt of FCC approval as set forth in Section
1.3 hereof, then the Warrant shall remain
exercisable until the earlier of (x) 5:00 PM, New
York City time, on the date that is ten Business
Days after the Warrantholder has received notice
from the Company that FCC approval of such exercise
has been received or is not required and (y) 5:00
PM, New York City time, on June 15, 2007, provided
that if FCC approval of such exercise is denied on a
date that is after the Expiration Date, the Warrant
shall in no case remain exercisable beyond the
expiration of any period in which the Company
or the Warrantholder may appeal such denial
if no such appeal is brought.
IN WITNESS WHEREOF, the Company has caused this
Warrant to be signed by its duly authorized officer.
Proteque Corporation
By: _______________________
Name:
Title:
Dated: __________, 2001
Attest:
By:_______________________
Name:
Title: Secretary
Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to
exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares
and herewith tenders payment for such Warrant Shares
to the order of Proteque Corporation in the amount
of $__________, which amount includes payment of the
par value for _________ of the Warrant Shares, in
accordance with the terms of this
Warrant. The undersigned requests that a certificate
for such Warrant Shares or shares of Common Stock,
as applicable, be registered in the name of
__________________ and that such certificates be
delivered to __________________ whose address
is______________________________________.
Dated:______________
Signature_____________________________
-----------------------------
(Print Name)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
--------------------------
Exhibit B
FORM OF ASSIGNMENT
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered
holder of the within Warrant hereby sells, assigns
and transfers unto ______________________
the right represented by such Warrant to purchase
________________ shares of Common Stock of Proteque
Corporation to which such Warrant relates and all
other rights of the Warrantholder under the within
Warrant, and appoints ______________________ Attorney
to make such transfer on the books of Proteque Corporation
maintained for such purpose, with full power of
substitution in the premises.
Dated: ___________________
Signature_____________________________
-----------------------------
(Print Name)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
Signed in the presence of:
--------------------------
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
-------------------------------------------
Proteque Corporation (a.k.a. Cassia
Acquisition Corporation)
COMMON STOCK PURCHASE WARRANT
-------------------------------------------
This certifies that, for good and valuable
consideration, Proteque Corporation, a Delaware
corporation (the "Company"), grants to
Acibar Investments International, Ltd. or assigns
the "Warrantholder", the right to subscribe for and
purchase from the Company 400,000 validly issued,
fully paid and nonassessable shares (the "Warrant
Shares") of the Company's Common Stock, par value
$0.001 per share (the "Common Stock"), 400,000
Shares at the purchase price per share of $0.75 (the
"Exercise Price"), at 0000 Xxxxxxxxx Xxxx., Xxxxx
000X, Xxxxxxx, Xxxxx Xxxxxxxx 00000 any time and
from time to time, (i) following the occurrence of a
Change in Control (as hereinafter defined), or (ii)
during the period from and including 9:00 AM, New
York City time, on May 24, 2001 until 5:00 PM, New
York City time, on May 23, 2008 (the "Expiration
Date"), all subject to the terms, conditions and
adjustments herein set forth. Certain capitalized
terms used herein and not otherwise defined are used
with the meanings ascribed to them in Section 17.
Certificate No. 1
Number of Shares: 400,000
Name of Warrantholder: Acibar Investments
International, Ltd.
1. Duration and Exercise of Warrant; Limitation
on Exercise; Payment of Taxes.
1.1 Duration and Exercise of Warrant. Subject to
the terms and conditions set forth herein, the
Warrant may be exercised, in whole or
in part, by the Warrantholder by:
(a) the surrender of this Warrant to the
Company, with a duly executed Exercise Form
specifying the number of Warrant
Shares to be purchased, during normal business hours
on any Business Day prior
to the Expiration Date; and
(b) the delivery of payment to the Company,
for the account of the Company, by cash, by
certified or bank cashier's check or
by wire transfer of immediately available funds in
accordance with wire instructions that shall be
provided upon request, of the Exercise Price for the
number of Warrant Shares specified in the Exercise
Form in lawful money of the United States of
America. The Company agrees that such Warrant
Shares shall be deemed to be issued to the
Warrantholder as the record holder of such
Warrant Shares as of the close of business
on tted only upon transfer of this Warrant)
For value received, the undersigned registered
holder of the within Warrant hereby sells, assigns
and transfers unto ______________________
the right represented by such Warrant to purchase
________________ shares of
Common Stock of Proteque Corporation to which such
Warrant relates and all other rights of the
Warrantholder under the within Warrant, and appoints
______________________ Attorney to make such
transfer on the books of Proteque Corporation.
