Exhibit 10.18
Serial Number [0300]
Void after 5:00 p.m., Chicago Time, on May 31, 2001 (unless
extended as provided below)
Warrant to Purchase certain
Shares of Common Stock,
dated June 1, 1996.
CERTIFICATE OF
WARRANT TO PURCHASE COMMON STOCK
OF
CHEUNG LABORATORIES, INC.
This Is To Certify That, FOR CASH AND OTHER VALUE RECEIVED, NACE RESOURCES,
INC., a Delaware corporation ("NACE"), its nominees, or assigns (hereinafter,
the "Holder(s)") are entitled to purchase, subject to the provisions of this
Warrant (its successors, divisions or additions), from Cheung Laboratories,
Inc., a corporation duly organized, in good standing within its domicile, and
whose offices as of the date hereof are at 10220-1 Old Columbia Road, Columbia,
MD 21046 (hereinafter, the "Company"), restricted and legended shares of common
stock of the Company ("Common Stock") at a purchase price equal to Forty One
Cents ($00.41 U.S.) per share in such amounts and at such times as are provided
herein.
The number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid for a share of Common Stock may be adjusted
from time to time as hereinafter set forth.
Supplementing, notwithstanding, and in support of the foregoing, the Company and
the original Holder hereof ("Nace"), intend that the number of shares issuable
hereunder shall be 396,719, which represents 1.875% of the issued and
outstanding Common Stock. In the event the Company fails to redeem an additional
4,000,000 shares of the Common Stock from Gao Yu Wen on or before June 30, 1997,
the original Holder hereof shall be entitled to a warrant on identical terms to
purchase an additional 75,000 shares.
The shares of Common Stock deliverable upon such exercise, and as adjusted from
time to time, are hereinafter referred to as "Warrant Stock" and the exercise
price for a share of Common Stock in effect at any time and as adjusted from
time to time is hereinafter sometimes referred to as the "Exercise Price".
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The term "Warrant" used above and throughout this Certificate shall mean this
Warrant or successor Warrants issued in exchange for it for any reason pursuant
to the terms and condition contained herein.
(i) Exercise of Warrant. Subject to the provisions of paragraphs 6 and
7 hereof, this Warrant may be exercised in whole or in part at any time or from
time to time on or after June 1, 1996 but not later than 5:00 p.m., Chicago
Time, on June 1, 2001 or if June 1, 2001 is a day on which U.S. banking
institutions are authorized by law to close, then on the next succeeding day
which shall not be such a day, by presentation and surrender hereof to the
Company or at the office of its stock transfer agent, if any, with a copy of the
Purchase Form attached hereto duly executed and accompanied by payment of the
Exercise Price for the number of shares specified in such form, together with
all federal and state taxes applicable upon such exercise, if any, and the
Company shall promptly issue and deliver stock certificates for the number of
shares purchased to the Holder hereof within two (2) business days in conformity
with industry practice. The Company may unilaterally extend the time within
which this Warrant may be exercised but is not obligated to do so.
If this Warrant should be exercised in part only or all or a portion of it
renewed as provided for in paragraph 7 hereof or otherwise, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant, containing terms and conditions identical to this Warrant except as
provided for herein, evidencing the right of the Holder(s) to purchase the
balance of the shares purchasable hereunder.
Upon receipt of this Warrant, the executed Purchase Form and the Exercise Price
by the Company or, if then applicable, by its stock transfer agent, the
Holder(s) shall be deemed to be the holder(s) of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Holder(s),
their agents or designees. The Company shall keep detailed records of the
disposition of this, successor Warrants, and any Warrant issuable hereunder,
each bearing a serial number, and shall make such records available to Holder(s)
or their agents upon request.
(ii) Reservation of Shares. The Company hereby represents and warrants
that at all times subsequent hereto there shall be reserved for issuance and/or
delivery upon exercise of this Warrant such number of shares of its Common Stock
as shall be required for issuance or delivery upon exercise of this Warrant or
any Warrant issuable hereunder.
(iii) Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon exercise of this Warrant. With respect to
any fraction of a share called for upon any exercises hereof, the Company shall
pay to the Holder(s) an amount in cash
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equal to such fraction multiplied by the current market value of such fractional
share, determined as follows:
(a) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange, the
current value shall be the last reported sale price of the Common Stock on such
exchange on the last business day prior to the date of exercise of this Warrant
or if no such sale is made on such day on such exchange; or
(b) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current value shall be the mean of the last
reported bid and asked prices reported by the National Association of Securities
Dealers Automated Quotation System (or, if not so quoted on NASDQ), by the
National Quotation Bureau, Inc.) on the last business day prior to the day of
the exercise of this Warrant; or
(c) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported, the
current fair market value shall be an amount, not less than book value or the
last known price paid by a purchaser for said Common Stock, determined in a
reasonable manner as may be prescribed by the Board of Directors of the Company.
(iv) Exchange, Assignment or Loss of Warrant. Subject to applicable
securities laws and the terms of the legend set forth in paragraph 11(b) hereof,
this Warrant certificate is fully exchangeable and (by definition) assignable,
without expense, at the option of the Holder(s), upon presentation and surrender
hereof to the Company or at the office of its stock transfer agent, if any, for
other Warrant certificates of different denominations entitling the Holder(s)
hereof to purchase in the aggregate the same number of shares of Common Stock
purchasable hereunder.
Any assignment hereof shall be made by surrender of this Warrant to the Company
or at the office of its stock transfer agent, if any, with a written, executed
assignment, instructions and funds sufficient to pay transfer tax (if any);
whereupon the Company shall, without charge, execute and deliver a new Warrant
certificate in the name of the assignee(s) named in such instrument of
assignment and this Warrant certificate shall promptly be cancelled. This
Warrant may be divided upon presentation hereof at the office of the Company or
at the office of its stock transfer agent, if any, together with a written
notice, specifying the names and denominations in which new Warrants are to be
issued, and signed by the Holder hereof. The terms "Warrant" and "Warrants" as
used herein include any Warrants issued in substitution for or replacement of
this Warrant, or into which this Warrant may be divided or exchanged.
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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 reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenure and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be at any time enforceable by anyone. Nevertheless, neither
the Company or the Holder(s) anticipate that this Warrant or any successor
Warrant shall itself be registered (rather that the underlying shares shall be
registered), the Company shall not impose unreasonable burdens on the Holder(s)
with respect to indemnification if same becomes necessary.
(v) Rights of the Holders. The Holder(s) shall not, by virtue hereof,
be entitled to any rights of a shareholder in the Company, either at law or
equity, and the rights of the Holder(s) are limited to those expressed in the
Warrant and are not enforceable against the Company except to the extent set
forth herein, PROVIDED HOWEVER, that the Company shall, in a timely manner,
provide Holder(s) with a copy of each and every press release, mailing to
shareholders and periodic filing with the U.S. Securities and Exchange
Commission made by the Company, and provided that the Company shall be, at all
times during the tenure of this Warrant or its successors, in compliance with
all of its contractual obligations to Riker and its affiliates.
(vi) Adjustments to Exercise Price and Number of Shares.
(a) The Company shall not be required to give effect to any
adjustment in the Exercise Price unless and until the net effect of one or more
adjustments, determined as above provided, shall have required a change of the
Exercise Price by at least one cent, ($00.01 U.S.) but when the cumulative net
effect of more than one adjustment so determined shall be to change the actual
Exercise Price by at least one cent, such change in the Exercise Price shall
thereupon be given effect.
Notwithstanding anything else in this paragraph which might be interpreted to
the contrary, should at any time subsequent to the issuance of this Warrant but
during the tenure of this Warrant and any renewals or extensions as are provided
for herein, any person or entity shall be issued an option or warrant
exercisable to purchase stock of the Company or stock of the Company is sold to
such person or entity at a price per share less than the then relevant Exercise
Price as determined as provided herein, an immediate adjustment in the Exercise
Price for this Warrant (and successor Warrants to this Warrant) shall be made.
The effect of this adjustment shall be to make the Exercise Price under this
Warrant equal to the lesser exercise, option or sale price referenced above.
However, this adjustment shall not have the effect of increasing the number of
shares purchasable hereunder. Rather it shall reduce the aggregate amount paid,
assuming full exercise of this Warrant, to an amount equal to the
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number of shares otherwise then purchasable hereunder multiplied by the newly
adjusted Exercise Price pursuant to this adjustment.
(b) The 396,719 shares issuable hereunder shall be adjusted so
that number of shares issuable hereunder shall be equal, at all times after
issuance of this Warrant, to 1.875% of the total issued and outstanding Common
Stock of the Company until the Company completes its next public offering of
securities.
(c) Whenever reference is made in this paragraph 6 to the
issue or sale of shares of Common Stock, the term "Common Stock" shall mean the
Common Stock of the Company of the class authorized as of the date hereof and
any other classes of stock ranking on a parity with or convertible into such
Common Stock providing, as is contemplated, it is the Common Stock of the
Company which is to be offered and sold at the next public offering of
registered Common Shares of the Company. However, as of the date of grant and
sale of this Warrant and subject to the provisions of paragraph 10 hereof,
shares issuable upon exercise hereof shall include only shares of the class
designated as Common Stock of the Company as of the date hereof.
(vii) Renewal of Exercise Rights. If, while this Warrant or any portion
of it remains in effect, Holder(s) wish to extend their rights to exercise all
or a portion of this Warrant which would otherwise expire and be lost to them,
they may do so by paying to the Company, a sum equal to five percent (5%) of the
then relevant Exercise Price pertaining to that portion of the Warrant which
would otherwise expire (the "Renewal Fee") and the Company shall extend that
portion of the Warrant for a further period of five (5) years from the date of
receipt of the Renewal Fee but, in no case, beyond 5:00 p.m., Chicago Time, on
June 1, 2006, and shall issue a new Warrant, identical in every respect to this
Warrant, except that such new Warrant shall reflect the fact that Holder(s)
shall have an additional five (5) years to exercise their rights to purchase
that portion of the Warrant Stock for which they have paid a Renewal Fee. This
provision extends to this Warrant and all successor Warrants issuable hereunder.
This provision is included partially to permit Holder(s) to coordinate their
exercise of this Warrant and sale of Warrant Stock so as to minimize the Costs
and Expenses and time of the Company's management in complying with the
provisions of this Warrant. Payment of the Renewal Fee will confirm no new
rights upon the Holder(s) except to extend and renew the time period during
which Holder(s) may exercise existing rights under this Warrant.
(viii) Officer's Certificate. Whenever the Exercise Price shall be
adjusted as required by the provisions of paragraph 6 hereof, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office, and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as herein provided
and setting forth in reasonable detail the facts requiring such adjustment.
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Each such officer's certificate shall be made available at all reasonable times
for inspection by the Holder(s) and the Company shall, forthwith after each such
adjustment, deliver a copy of such certificate to the Holder(s) and each of
them. Unless disputed in writing by the Holder hereof within thirty (30) days,
such certificate shall be conclusive as to the correctness of such adjustment.
(ix) General Notices to Warrant Holders. So long as any portion of this
Warrant (or any successor Warrant) shall be outstanding and unexercised (a) if
the Company shall pay any dividend or make any distribution upon the Common
Stock or (b) if the Company shall offer to the holders of Common Stock for
subscription or purchase by them any shares of stock of any class or any other
rights or (c) if any capital reorganization of the Company, reclassification of
the capital stock of the Company, consolidation or merger of the Company with or
into another corporation, sale, lease or transfer of all or substantially all of
the property and assets of the Company to another corporation or engage in
voluntary or involuntary dissolution, liquidation or winding up of the company,
then the Company shall cause to be delivered to the Holder(s), at least thirty
(30) days prior to the relevant date, a notice containing a brief description of
the proposed action and stating the date of which a record is to be taken for
the purpose of such dividend, distribution of rights, or such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any, is to be fixed
as of which the holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock of record for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
(x) Reclassification, Reorganization or Merger. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company (other than a change in par value, or from par
value to no par value, or from no par value to par value) or as a result of an
issuance of Common Stock by way of dividend or other distribution or of a
subdivision or combination, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety
(collectively, a "Triggering Event"), the Company shall use good faith efforts
to cause effective provision to be made so that the Holder(s) shall have the
right thereafter (and shall have said right for the same period of time
remaining on any unexercised portion of this Warrant), without immediately
exercising this Warrant, to purchase the kind and amount of shares of stock and
other securities and property receivable upon such reclassification, capital
reorganization or other change, consolidation, merger, sale or conveyance.
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Any such provision shall include provision for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Warrant. However, in the event that the Company, using its good faith efforts,
is unable to negotiate with the acquiring entity the assumption of the Warrants
as provided in the preceding portion of this paragraph, then and in such event
this Warrant shall terminate, to the extent not previously exercised, as of the
record date for such transaction upon and only upon payment of a "Retirement
Fee" to the Holder(s) hereof.
This Retirement Fee shall consist of the same kind of property (including cash,
if any) to be received by the Company's stockholders pursuant to the Triggering
Event (and, at parity with holders of Common Stock, treated in accordance with
all the other terms and conditions, including timing and manner of payment for
the purchase) and the Company herein agrees that said Retirement Fee may be
arrived at by private negotiation between the Company and the Holder(s) or may
be arbitrated in accordance with the provisions herein provided.
However, the Company now and specifically agrees that, in the event of such
private negotiation, it shall accept an amount to be paid to the Holder(s) (as a
senior obligation of the company in any such transaction) in arbitration or
negotiation which is not less than the lowest sum per Warrant which shall result
from application of any then applicable Warrant Valuation Techniques (such as
the Black-Scholes Model) which may be applied to publicly traded warrants
covering publicly traded common stock, it being intended by the Company and the
Holder(s) that the Retirement Fee should reflect: (a) the difference between the
purchase and exercise price per share plus (b) a warrant premium factor commonly
determinable by the aforementioned models. Said Retirement Fee shall be a senior
obligation of the Company and shall be paid to Holder(s) from first proceeds of
any sale or merger in cash unless otherwise negotiated between the Company and
Nace (the original Holder).
All subsequent Holders shall agree, by acceptance of assignment of any portion
of the Warrant covered by this certificate, to be bound by this provision. All
costs and expenses directly attributable to the determination of the Retirement
Fee (including but not limited to the costs of outside appraisal(s)) shall be at
the expense of the Company.
The foregoing provisions of this section 10 shall similarly apply to successive
reclassification, consolidations, mergers, sales, or conveyances. In the event
that in any such capital reorganization or reclassification, consolidation,
merger, sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for or of a
security of the Company other than Common Stock, any such issue shall be treated
as an issue of Common Stock covered by the provisions of paragraphs 3, 6, and 9
hereof, with the amount of the consideration received upon the issue thereof
being determined by the Board of Directors of the Company in consultation with
the Company's auditors, such determination to be final and binding on the
Holder(s).
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(xi) Transfer to Comply with the Securities Act of 1933.
(a) This Warrant or the Warrant Stock or any
other security issued or issuable upon exercise of this Warrant may not be sold,
transferred or otherwise disposed of except to a person who, in the opinion of
counsel reasonably satisfactory to the Company, is a person to whom this Warrant
or such Warrant Stock may legally be transferred pursuant to paragraph 4 hereof
without registration and without the delivery of a current prospectus under the
Securities Act with respect thereto; and then only against receipt by the
Company of an agreement from such person to comply with the provisions of this
paragraph 11 with respect to any resale or other disposition of such securities.
(b) The Company may cause the following legend
to be set forth on each certificate representing Warrant Stock or any other
security issued or issuable upon exercise of this Warrant not theretofore
distributed to the public pursuant to paragraphs 12, 13, or 14 hereof, unless
counsel for the Company is of the opinion as to any such certificate that such
legend is unnecessary.
"The securities represented by this certificate may
not be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Securities Act of 1933 (the "Act"),
or pursuant to an exemption from registration under the Act."
(xii) Demand Registration. If at any time, after the next public
offering of registered Common Shares of the Company (as previously covered and
defined herein) Nace shall decide to sell or otherwise dispose of Warrant Stock
then owned or to be owned upon intended exercise of this Warrant by Nace, then
Nace and only Nace may give written notice to the Company of the proposed
disposition, specifying the number of shares of Warrant Stock to be sold or
disposed of and requesting that the Company prepare and file a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering such Warrant Stock.
The Company shall within 10 days thereafter give written notice to the other
Holders of Warrants or Warrant Stock of such request and each of the other
Holders shall have the option for a period of 30 days after receipt by it (them)
of notice from the Company to include its (their) Warrant Stock in such
registration statement. The Company shall use its best efforts to cause an
appropriate registration statement (the "Registration Statement") covering such
Warrant Stock to be filed with the Securities and Exchange Commission (the
"Commission") and to become effective as soon as reasonably practicable and to
remain effective until the completion of the distribution of the Warrant Stock
to be offered or sold; provided, however, that not more than once in any twelve
month period the Company shall have the right to postpone for a period of up to
60 days any demand made pursuant to this
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Warrant if the underwriters for such offering advise the Company in writing that
market conditions make such a postponement advisable to the Company.
The Holder(s) whose Warrant Stock is (are) included in a Registration Statement
is (are) hereinafter referred to as the "Selling Shareholder(s)".
Each notice delivered by a Selling Shareholder(s) to the Company pursuant to
this paragraph 12 shall specify the Warrant Stock intended to be offered and
sold by such Selling Shareholder(s), express such Selling Shareholder(s) present
intent to offer such Common Shares for distribution, and contain the undertaking
of such Selling Shareholder(s) to provide all information and materials and to
take all action as may be required in order to permit the Company to comply with
all applicable requirements of the Securities Act, and any rules and regulations
promulgated thereunder, and to obtain acceleration of the effective date of such
Registration Statement.
The Company shall not be obligated to file more than three Registration
Statements pursuant to the foregoing provisions of this paragraph 12. The
Company shall bear all of the Costs and Expenses (as hereinafter defined in
paragraph 20 hereof) of the first such registration. The Selling Shareholder(s)
shall bear the costs and expenses of all further registrations pursuant to this
paragraph 12. A demand for registration under this paragraph 12 will not count
as such until the Registration Statement has become effective.
(xiii) Shelf Registration By Original Holder. At any time and from time
to time during the term of this Warrant or its successors (including renewals
and extensions as provided for herein) Nace Resources, Inc. and only Nace
Resources, Inc. (as the original Holder hereof), may demand (and actually
expects) that the Company will file a Registration Statement with the Commission
for the registration of underlying shares issuable upon exercise of this Warrant
or any part thereof, whether or not said Warrant has, in the interim been
assigned or re-assigned to other parties.
In this event, the Company shall pay all of the Costs and Expenses of said
Registration for each such demand except that the Holder shall be responsible,
if such demand is made by the Holder during a period in which the Company is
unable or unqualified to file a "short form" S-3 Statement (or its then relevant
equivalent) for paying all of the Costs and Expenses of said Registration which
are estimated to exceed costs for a similar Registration assuming the Company
had been, as of the date of the demand, a reporting Company for three (3) years
and could file a "short form" statement. In this case, the costs payable by the
Holder shall be determinable by securities counsel to the Company and both the
Company and the Holder are entitled to rely on such an estimate.
Once filed, the Company shall be obligated to continue this "shelf registration"
for the maximum time allowable under the then relevant regulations, at its sole
expense.
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(xiv) Procedure for Demand Registration. In connection with the
filing of a Registration Statement pursuant to paragraph 12 hereof, and in
supplementation and not in limitation of the provisions thereof, the Company
shall:
(a) Notify the Selling Shareholder(s) as to the filing of the
Registration Statement and of all amendments or supplements thereto filed thirty
(30) days prior to the effective date of said Registration Statement;
(b) Notify the Selling Shareholder(s), promptly after the
Company shall receive notice thereof, of the time when said Registration
Statement became effective or when any amendment or supplement to any prospectus
forming a part of said Registration Statement has been filed;
(c) Notify the Selling Shareholder(s) promptly of any requestby the Commission
for the amending or supplementing of such Registration Statement or prospectus
or for additional information;
(d) Prepare and promptly file with the Commission, and
promptly notify the Selling Shareholder(s) of the filing of, and amendments or
supplements to such Registration Statement or prospectus as may be necessary to
correct any statements or omissions if, at any time when a prospectus relating
to the Warrant Stock is required to be delivered under the Securities Act, any
event with respect to the Company shall have occurred as a result of which any
such prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading; and, in prepare and file with the
Commission, promptly upon the Selling Shareholder(s)' written request, any
amendments or supplements to such Registration Statement or prospectus which may
be reasonably necessary or advisable in connection with the distribution of the
Warrant Stock;
(e) Prepare promptly upon request of the Selling
Shareholder(s) or any underwriters for the Selling Shareholder(s) such amendment
or amendments to such Registration Statement and such prospectus or prospectuses
as may be reasonably necessary to permit compliance with the requirements of
Section 10 (a) (3) of the Securities Act;
(f) Advise the Selling Shareholders promptly after the Company
shall receive notice or obtain knowledge of the issuance of any stop order by
the Commission suspending the effectiveness of any such Registration Statement
or amendment thereto or of the initiation or threatening of any proceeding for
that purpose, and promptly use its best efforts to prevent the issuance of any
stop order or obtain its withdrawal promptly if such stop order would be issued;
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(g) Use its best efforts to qualify as soon as reasonably
practicable the Warrant Stock for sale under the securities or blue-sky laws of
such states and jurisdictions within the United States as shall be reasonably
requested by the Selling Shareholder(s); provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business, to become subject to taxation or to file a consent to service of
process generally in any of the aforesaid states or jurisdiction;
(h) Furnish the Selling Shareholder(s), as soon as available,
copies of any Registration Statement and each preliminary or final prospectus,
or supplement or amendment required to be prepared pursuant thereto, all in such
quantities as the Selling Shareholder(s) may from time to time reasonably
request, and;
(i) If requested by the Selling Shareholder(s), enter into an
agreement with the underwriters of the Warrant Stock being registered containing
customary provisions and reflecting the foregoing.
(xv) Incidental Registration. Other than as covering in paragraph 13
hereof, if at any time the Company subsequent to the next public offering of
registered Common Shares of the Company, shall propose the filing of a
Registration Statement on an appropriate form under the Securities Act for the
registration of any securities of the Company, other than a registration
statement on Form S-4 or S-8 or any equivalent form of registration statement
then in effect, then the Company shall give the Holder(s) notice of such
proposed registration and shall include in any Registration Statement relating
to such securities all or a portion of the Warrant Stock then owned or to be
owned by such Holder(s), which such Holder(s) shall request (such Holder(s) to
be considered "Selling Shareholder(s)"), by notice given by such Selling
Shareholder(s) to the Company within 15 business days after the giving of such
notice by the Company, within 15 business days after the giving of such notice
by the Company, to be so included. In the event of the inclusion of Warrant
Stock pursuant to this paragraph 15, the Company shall bear the Costs and
Expenses of such registration; provided, however that the Selling Shareholder(s)
shall pay the fees and disbursements of their own counsel and, pro-rata based
upon the number of shares of Warrant Stock included therein as these relate to
the total number of Common Shares to be offered or sold, the Securities Act
registration fees and underwriters discounts and compensation attributable to
the inclusion of such Warrant Stock; and, provided further, however, that
amounts to which any person or entity shall become entitled pursuant to this
sentence shall not include amounts which may become payable pursuant to
paragraphs 16 or 17 hereof. Nothing in this paragraph 15 shall require the
registration of Warrant Stock in a Registration Statement relating solely to (a)
securities to be issued by the Company in connection with the acquisition of the
stock or the assets of another corporation, or the merger or consolidation of
any other corporation by or with the Company or any of its subsidiaries, or an
exchange offer with any corporation, (b) securities to be offered to the then
existing security holders of the Company, or (c) securities to be offered to
employees of the Company. In the event the
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distribution of securities of the Company covered by a Registration Statement
referred to in this paragraph 15 is to be underwritten, then the Company's
obligation to include Warrant Stock in such a Registration Statement shall be
subject, at the option of the Company, to the following further conditions:
(a) The distribution for the account of the Selling
Shareholders shall be underwritten by the same underwriters who are underwriting
the distribution of the securities for the account of the Company and/or any
other persons whose securities are covered by such Registration Statement and
the Selling Shareholder(s) shall enter into an agreement with such underwriters
containing customary provisions.
(b) If the Selling Shareholders are included in the
Registration Statement and if the underwriting agreement entered into with the
aforesaid underwriters contains restrictions upon the sale of securities of the
Company, other than the securities which are to be included in the proposed
distribution, for a period not exceeding 90 days from the effective date of the
Registration Statement, then such restrictions shall be binding upon the Selling
Shareholder(s) with respect to any Warrant Stock not covered by the Registration
Statement and, if requested by the underwriter, the Selling Shareholder(s) shall
enter into a written agreement to that effect.
(c) If the underwriters shall state in writing that they are
unwilling to include any or all of the Selling Shareholder(s) Warrant Stock in
the proposed underwriting because such inclusion would materially interfere with
the orderly sale and distribution of the securities being offered by the
Company, then the number of the Selling Shareholder(s)' shares of Warrant Stock
to be included shall be reduced pro rata on the basis of the number of shares of
Warrant Stock originally requested to be included by such Selling
Shareholder(s), or there shall be no inclusion of the shares of the Selling
Shareholder(s) in the Registration Statement not proposed distribution, in
accordance with such statement by the underwriters.
However, if in such an event, the Holder(s) hereof shall not
be able to include at least fifty percent (50%) of the Warrant Stock originally
requested to be included, then the Company shall agree to pay all of the Costs
and Expenses of a Shelf Registration to be filed at a later date.
(xvi) Indemnification by the Company. The Company shall indemnify and
hold harmless each Selling Shareholder, any underwriter (as defined in the
Securities Act) for the Selling Shareholder, and each person, if any, who
controls the Selling Shareholder or such underwriter within the meaning of the
Securities Act (but, in the case of an underwriter or a controlling person, only
if such under writer or controlling person indemnifies the persons mentioned in
paragraph 17(b) hereof in the manner set forth therein) against any losses,
claims, damages or liabilities, joint or several, to which the Selling
Shareholder or any such
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underwriter or controlling person becomes subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) are caused by any untrue statement or alleged untrue statement
of any material fact contained in any preliminary prospectus (if used prior to
the effective date of the Registration Statement), or contained, on the
effective date thereof, in any Registration Statement under which the Selling
Shareholder(s)' shares of Warrant Stock were registered under the Securities
Act, the prospectus contained therein, or any amendment or supplement thereto,
arising out of or based upon 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; the Company shall reimburse the Selling Shareholder, or
any such underwriter or controlling person, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
furnished in writing to the Company by such person expressly for inclusion in
any of the foregoing documents.
(xvii) Indemnification by Selling Shareholders. Each individual Selling
Shareholder shall:
(a) Furnish to the Company in writing all information
concerning it and it's holdings of securities of the Company as shall be
required in connection with the preparation and filing of any Registration
Statement covering any Shares of Warrant Stock.
(b) Indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed a Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act and any underwriter (as defined in the Securities Act) for the Company,
against any losses, claims, damages or liabilities to which any such director,
officer, controlling person or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect therefor) are caused by any untrue statement
of any material fact contained in any preliminary prospectus (if used prior to
the effective date of the Registration Statement) or contained, on the effective
date thereof, in any Registration Statement under which the Selling
Shareholder's securities were registered under the Securities Act, the
prospectus contained therein, or any amendment or supplement thereto, or arising
out of or based upon the omission to state therein a material fact required to
be stated therein or necessary to make the statement therein not misleading; in
each case to the extent, but only to the extent, that such untrue statement or
omission was made in reliance upon and in conformity with information furnished
to the Company in writing by the Selling Shareholder expressly for inclusion in
any of the foregoing documents, and the Selling Shareholder shall reimburse the
Company and any such director, officer, controlling person or underwriter for
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling
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person or underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action.
(xviii) Notification by Selling Shareholders. The Selling
Shareholder(s) and each other person indemnified pursuant to paragraph 16 hereof
shall, in the event it receives notice of the commencement of any action against
it which is based upon an alleged act or omission which, if proven, would result
in the Company having to indemnify it pursuant to paragraph 16 hereof, promptly
notify the Company, in writing, of the commencement of such action and permit
the Company, if the Company so notifies the Selling Shareholder(s) within 10
days after receipt by the Company of notice of the commencement of the action,
to participate in and to assume the defense of such action with counsel
reasonably satisfactory to the Selling Shareholder(s) or such other indemnified
person, as the case may be. The omission to notify the Company promptly of the
commencement of any such action shall not relieve the Company of any liability
to indemnify the Selling Shareholder(s) or such other indemnified person, as the
case may be, under paragraph 16 hereof, except to the extent that the Company
shall suffer any loss by reason of such failure to give notice which it may have
pursuant to the rights conveyed to the Holders) in this Warrant.
(xix) Notification by the Company to Selling Shareholders. The Company
agrees that, in the event it receives notice of the commencement of any action
against it which is based upon an alleged act or omission which, if proven,
would result in a Selling Shareholder having to indemnify the Company pursuant
to paragraph 17(b) hereof, the Company will promptly notify the Selling
Shareholder in writing of the commencement of such action and permit the Selling
Shareholder, if the Selling Shareholder so notifies the Company within 10 days
after receipt by the Selling Shareholder of notice of the commencement of the
action, to participate in and assume the defense of such action with counsel
reasonably satisfactory to the Company. The omission to notify the Selling
Shareholder promptly of the commencement of any such action shall not relieve
the Selling Shareholder of liability to indemnify the Company under paragraph
17(b) hereof, except to the extent that the Selling Shareholder shall suffer any
loss by reason of such failure to give notice, and shall not relieve the Selling
Shareholder of any other liabilities which it may have under this or any other
agreement then in effect between the Company and the Selling Shareholder.
(xx) Costs and Expenses. As used in this Warrant, "Costs and Expenses"
shall include all of the costs and expenses relating to the respective
Registration Statement(s) involved, including but not limited to, registration
fees, filing and qualification fees, blue-sky expenses, printing and mailing
expenses, fees and expenses of Company's counsel and, if/when appropriate, fees
and expenses of counsel designated by the Selling Shareholder(s) (provided,
however, that no more than one such counsel for the Selling Shareholder(s) shall
be designated on any occasion).
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(xxi) Addresses. All notices, certificates, waiver and other
communications required or permitted to be given hereunder to any of the parties
by any other party shall be in writing and shall be delivered personally or sent
by next day delivery service or registered or certified mail, postage prepaid,
as follows:
(a) If to the Company, addressed to:
Cheung Laboratories, Inc.
10220-I Old Columbia Road
Columbia, MD 21046-1705
Attention: Mr. John Mon, General Manager
(b) If to a Holder, addressed to the address of
each such Holder as shall, from time to
time, appear on the records of the Company
or those of the Company's transfer agent as
may be the case.
Any notice delivered personally or sent by next day delivery service shall be
deemed to have been given on the date so delivered, and any notice delivered by
registered or certified mail shall be deemed to have been given on the date it
is received. Any party may change the address to which notices hereunder are to
be sent by giving written notice of such change of address in the manner
provided for giving notice.
(xxii) Waiver. No waiver by a Holder of any right hereunder shall be
effective unless it is in writing which specifically refers to the provision
hereof under which such right arises, and no such waiver shall operate or be
construed as a waiver of any subsequent breach, whether of a similar or
dissimilar nature.
(xxiii) Entire Warrant. This Warrant may be amended, supplemented or
modified only by a written instrument executed by the Company and the Holder(s).
While separate executed letters proposing and/or accepting amendment(s) sent to
the Company by the Holder(s) or to the Holder(s) by the Company shall, for the
purposes of this paragraph 23, constitute a valid agreement as to the
relationship then created by and between the Company and the individual Holder
in question, only Nace (as the original Holder) may, by agreement with the
Company, bind all subsequent Holders to one single written instrument which
shall serve to amend the terms and conditions hereof, and to which by their
acceptance of an assignment of any portion of this Warrant, they implicitly
agree to be bound by.
(xxiv) Applicable Law. This Warrant and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
substantive laws of the State of Illinois applicable to contracts made and to be
performed therein without giving effect to the principles of conflict of laws
thereof.
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(xxv) Appraisal Rights. In the event that the Company's board of
directors has not approved and the Company has not executed the next public
offering of the Company's Common Stock prior to the second anniversary of the
issuance of this Warrant, a majority in interest of the Holder(s) may, in their
sole discretion and at any time thereafter, give notice to the Company that they
wish to avail themselves of Appraisal Rights rather than force the Company into
filing a Registration Statement against its will by demanding registration
hereunder.
Should this event occur, the Company and the Holder(s) shall meet together to
appraise the value of the Warrant(s) and shall proceed to do so in the same
fashion and spirit as is provided for in the first paragraph of section 10
hereof in determining a Retirement Fee to be paid the Holders upon termination
of the Warrant(s).
(xxvi) Binding Effect. The provisions contained in this Warrant shall
be binding upon and inure to the benefit of the Company and the Holders and
their respective successors, permitted assigns, heirs and legal representatives.
Any person to whom all or a part of a Holder's rights and obligations hereunder
are assigned shall fulfill such of the assigning Holder's obligations hereunder
as have been assigned, and shall be entitled to all of the rights and benefits
hereunder to the extent that such person has assumed such Holder's obligations.
The rights and powers of each successive Holder hereunder are granted to such
Holder as an owner of Warrants or Warrant Stock as the case may be. Any
subsequent Holder whether becoming such by transfer, assignment, operation of
law or otherwise, shall have the same rights and powers which a Holder owning
the same number of Warrants and/or Warrant Stock has hereunder, and shall be
entitled to exercise such rights and powers until such Holder or subsequent
Holder no longer owns any Warrants or Warrant Stock. Except as provided in this
paragraph 26, this Warrant does not create, and shall not be construed as
creating, any rights enforceable by any person not a Holder.
(xxvii) Validity. If any term, provision, covenant or restriction of
this Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the Company agrees that such term, provision, covenant or
restriction shall be reformed to the extent possible consistent with such
judicial holding to reflect the intent of the Company and the original Holder as
stated herein and the remainder of the terms, provisions, covenants and
restrictions of this Warrant shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the Company that it would have executed this
Warrant including the remaining terms, provisions, covenants and restrictions
without including any of such provision of term which may be hereafter declared
invalid, void or unenforceable.
This Warrant (Serial Number: 0300) is granted and sold on this 1st day of June,
1996.
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Cheung Laboratories, Inc.
By:______________________________
Augustine Cheung, President
- 17 -
PURCHASE FORM
Dated: __________
Cheung Laboratories, Inc.
10220-1 Old Columbia Road
Columbia, MD 21046-1705
Attention: Mr. John Mon, General Manager
Attached herewith is Cheung Laboratories, Inc.'s Common Stock Purchase Warrant,
Serial Number: __________, giving the Holder the right to purchase __________
shares.
I/We hereby notify you that I/we are exercising my/our right to purchase
__________ shares and have enclosed herewith my/our check in the amount of
$__________, representing the aggregate exercise price of said shares. If
transfer taxes (federal or state) are applicable to this transaction, I/we
understand that you will be billing me/us for said taxes, which I/we agree will
be promptly remitted to you within ten (10) days of my/our receipt of
notification.
I/We hereby state that the shares being purchased are to be held by me/us for
investment purposes and not with a view to sale, except pursuant to an effective
registration statement or an exemption therefrom.
Please cancel the enclosed Warrant and, if applicable, send me/us a Warrant, in
partial substitution on identical terms, for the remaining shares not being
purchased pursuant to this notification.
Yours very truly,
Holder of Warrant, Serial Number __________
_______________________
_______________________
_______________________
_______________________
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