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 $8.00
(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. 3
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.
11.2 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 $8.00
(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. 3
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 xxxx) (Zip
Code)
Signed in the presence of:
--------------------------
