UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 5, 2008
PROTEO, INC.
(Exact name of registrant as specified in its charter)
Nevada 000-32849 88-0292249
(State of other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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2102 Business Center Drive, Irvine, California 92612
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (949) 253-4616
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425).
|_| Soliciting material pursuant to Rule 14A-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On June 9, 2008, the Registrant entered into a Preferred Stock Purchase Agreement (the "Agreement") with FIDEsprit AG, a Swiss corporation (the "Investor"). Pursuant to the Agreement, the Registrant issued and sold to the Investor 600,000 shares of the Registrant's Series A Preferred Stock at a price of $6.00 per share, for an aggregate purchase price $3,600,000. In payment of the purchase price, the Investor delivered to the Registrant a promissory note in the principal amount of $3,600,000. The promissory note does not bear any interest, and is payable as follows: (i) the first installment, in the amount of $900,000, was due upon execution of the Agreement, (ii) the second installment, in the amount of $450,000, is due on or before August 30, 2008, (iii) the third installment, in the amount of $900,000, is due on or before November 30, 2008, and (iv) the final installment, in the amount of $1,350,000, is due on or before March 31, 2009. The promissory note is guaranteed by Axel J. Kutscher. The terms of the Series A Preferred Stock are described in Item 5.03 below. Joerg Alte, a director of the Registrant, is the Managing Director of the Investor.
ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES.
On June 9, 2008 the Registrant entered into the Agreement described in Item 1.01 above. Pursuant to the Agreement the Registrant issued to the Investor 600,000 shares of Series A Preferred Stock in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended, by virtue of the exemptions available under Rule 506 of Regulation D and Regulation S and the rules promulgated thereunder.
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR.
On June 5, 2008, the Registrant filed a Certificate of Designation with the Secretary of State of the State of Nevada to designate 750,000 shares of its authorized preferred stock as Series A Preferred Stock. The Certificate of Designation, a copy of which is attached as Exhibit 3.9 to this Current Report on Form 8-K and incorporated herein by reference, describes the rights, preferences and privileges of the Series A Preferred Stock.
9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits. The following materials are filed as exhibits to this Current report on Form 8-K:
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
PROTEO, INC.
Date: June 9, 2008 By: /s/ BIRGE BARGMANN
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Birge Bargmann
Chief Executive Officer
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EXHIBIT 3.9
ROSS MILLER
Secretary of State
[SEAL] 204 North Carson Street, Ste 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: secretaryofstate.biz
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Filed in the office of Document Number
/s/ Ross Miller 20080386820-67
Ross Miller --------------------
Secretary of State Filing Data and Time
State of Nevada 06/05/2008 4:03 PM
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Entity Number
C13879-1992
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CERTIFICATE OF DESIGNATION
(PURSUANT TO NRS 78.1955)
USE BLACK INK ONLY - DO NOT HIGHLIGHT ABOVE SPACE IS FOR OFFICE USE ONLY
1. Name of corporation:
Proteo, Inc.
2. By resolution of the board of directors pursuant to a provision in the articles of incorporation, this certificate establishes the following regarding the voting powers, designations, preferences, limitations, restrictions and relative rights of the following class or series of stock.
Series A Preferred Stock, authorized number of shares constituting such series shall be 750,000, with a par value of $0.001 per share.
Please see attached.
3. Effective date of filing (optional):
4. Officer Signature (Required): X /s/ Birge Bargmann
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Filing fee: $175.00
IMPORTANT: Failure to include any of the above information and submit the proper fees may cause this filing to be rejected.
CERTIFICATE OF DESIGNATION OF SERIES A PREFERRED STOCK
OF
PROTEO, INC.
A NEVADA CORPORATION
Proteo, Inc., a Nevada corporation (the "Corporation"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation:
RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation (the "Board of Directors") in accordance with the provisions of the Articles of Incorporation of the Corporation, there is hereby created, a series of Preferred Stock consisting of 750,000 shares, which series shall have the following powers, designations, preferences and relative, participating, optional and other special rights, and the following qualifications, limitations and restrictions as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of Preferred Stock created hereby shall be designated as "Series A Preferred Stock" and the authorized number of shares constituting such series shall be 750,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) The holders of the then outstanding shares of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds of the Corporation legally available therefore, preferential dividends at the per share rate of two (2) times the per share amount of each and any cash and non-cash dividend distributed to holders of the Corporation's Common Stock when, as and if declared by the Board of Directors.
(B) No dividend shall be paid or declared on any share of Common Stock, unless a dividend, payable in the same consideration and manner, is simultaneously paid or declared, as the case may be, on each share of Series A Preferred Stock in an amount determined as set forth in paragraph (A) above. For purposes hereof, the term "dividends" shall include any pro rata distribution by the Corporation, out of funds of the Corporation legally available therefore, of cash, property, securities (including, but not limited to, rights, warrants or options) or other property or assets to the holders of the Common Stock, whether or not paid out of capital, surplus or earnings.
(C) If no dividend is distributed according to Section 2 (A), the holders of the then outstanding shares of Series A Preferred Stock shall be entitled to an annual stock dividend, when, as and if declared by the Board of Directors, payable at the rate of one (1) share of the Series A Preferred Stock for each twenty (20) shares of Series A Preferred Stock then held by each holder of Series A Preferred Stock. Such stock dividend shall be paid on June 30 of each year, commencing with the first June 30 in the year subsequent to the calendar year in which the shares of Series A Preferred Stock were issued and no dividend was distributed according to Section 2 (A). No fractional shares of Series A Preferred Stock shall be issued in connection with the payment of the stock dividend. In lieu of fractional shares, the Corporation shall issue such additional fraction of a share as is necessary to increase the fractional share to a full share.
No stock dividend under this paragraph shall be paid after December 31, 2011.
(D) The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive any dividend or distribution as provided in Paragraph (A) or Paragraph (C) above.
Section 3. VOTING RIGHTS. Except than otherwise provided herein or by law, the shares of Series A Preferred Stock shall have no voting rights other than on such matters submitted to a vote to the stockholders of Series A Preferred Stock and such other stock designated to be the same class of the Company's stock.
Section 4. REACQUIRED SHARES. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of Series A Preferred Stock or of any other series of Preferred Stock as designated by the Board of Directors from time to time.
Section 5. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation, voluntary or otherwise, dissolution or winding up of the Company, holders of Series A Preferred Stock shall be entitled to receive per share distributions equal to two (2) times the rate of per share distributions to be made to the holders of Common Stock. No distributions shall be made unless nay accrued and unpaid dividends and distributions on the Series A Preferred Stock have been made prior thereto. In the event, the Company shall have (i) subdivided the outstanding Common Stock, or (ii) combined the outstanding Common Stock into a smaller number of shares by a reverse stock split or otherwise, after the issuance of Series A Preferred Stock, distributions payable to Series A Preferred Stock under this Section 5 shall be adjusted accordingly.
Section 6. CONSOLIDATION; MERGER; ETC. In the event the Company shall enter into any consolidation, merger combination or other transaction in which the shares of Common Stock are exchanged into other stock or securities, cash and /or any other property, then in any such case each share of Series A Preferred Stock shall automatically be simultaneously exchanged for or converted into the same stock or securities, cash and/or other property at a rate per share equal to 1.5 times the rate per share that the Common Stock is being exchanged or converted.. In the event, the Company shall (i) subdivide the outstanding Common Stock, or (ii) combine the outstanding Common Stock into a smaller number of shares by a reverse stock split or otherwise, the amount set forth in the preceding sentence shall be adjusted at the same rate.
Section 7. REDEMPTION. The shares of Series A Preferred Stock shall not be redeemable.
Section 8. RANKING. The Series A Preferred Stock may rank junior to any other series of the Corporation's Preferred Stock as to the payment of dividends and the distribution of assets as may be determined in the designation of any such series of Preferred Stock.
Section 9. AMENDMENT. At any time when any shares of Series A Preferred Stock are outstanding, neither the Articles of Incorporation of the Corporation nor this Certificate of Designation shall be amended or altered in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of holders representing a majority of the outstanding shares of Series A Preferred Stock, voting separately as a class.
IN WITNESS WHEREOF, the undersigned have executed this Certificate and do affirm the foregoing as true and correct this 05 day of June 2008.
/s/ Birge Bargmann
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Birge Bargmann
President, CEO and CFO
Attest:
/s/ Barbara Kahlke
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Barbara Kahlke, Ph.D.
Secretary
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EXHIBIT 10.8
PROTEO, INC.
This Preferred Stock Purchase Agreement ("Agreement") is made this 9th day of June, 2008 by and between PROTEO, INC., a Nevada corporation with its principal place of business at 2102 Business Center Drive, Irvine, CA 92612 (the "Company") and the Purchaser of its stock, FIDEsprit AG, a Swiss corporation with its principal place of business at Rosengartenstr. 4, CH-8608 Bubikon, Switzerland ("Purchaser").
A. The Company is engaged in research and development of pharmaceuticals. The Company now is willing to sell shares of its Series A Preferred stock, on terms as stated herein.
B. The Company has authorized 300,000,000 shares of common stock and 10,000,000 shares of preferred stock. Currently, 23,879,350 shares of the Company's common stock are issued and outstanding. As of the date hereof, no preferred stock has been issued.
C. The Company has created a Series A Preferred Stock of and designated up to 750,000 shares of the Company's preferred stock which voting powers, preferences and relative, participating, optional and other special rights are defined in the Certificate of Designation of Series A Preferred Stock, a copy of which is attached hereto as Exhibit A.
D. Purchaser and the Company now mutually desire for Purchaser to purchase 600,000 shares of the Company's Series A Preferred Stock at the price per share determined herein, on the terms and conditions stated herein.
In consideration of the mutual promises, representations, warranties and conditions set forth in this Agreement, the Company and Purchaser agree as follows.
1. Purchase and Sale of Shares.
1.1 SALE OF SHARES. The Company and its Board of Directors has authorized the issuance and sale of 600,000 shares of Series A Preferred stock (the "Purchase Shares") pursuant to the terms of this Agreement, which Purchase Shares in accordance with the Certificate of Designation, Preferences and Rights of Series A Preferred Stock (the "Certificate"), a copy of which is attached hereto as part of this Agreement.
1.2 PRICE PER SHARE. The price per share shall be $6.00 per share, totaling to $3,600,000 for the Purchase Shares.
In reliance upon Purchaser representations and warranties contained in Section 4 hereof, and subject to the terms and conditions set forth herein, the Company hereby agrees to sell to Purchaser 600,000 shares of the Company's Series A Preferred Stock.
2. CLOSING: ISSUANCE AND DELIVERY OF SHARES: CONDITIONS.
2.1 CLOSING(S). The closing of the sale under this Agreement (the "Closing"), shall be held within five (5) working days following the date of the Agreement ("Closing Date"), at the offices of the Company or on such earlier date or at such other place as the Parties may agree.
2.2 PAYMENT OF PURCHASE PRICE. At the Closing, the Purchaser shall
deliver appropriate promissory note for the payment of the
purchase price as determined in paragraph 1.2. payable in four
(4) installments in such amount and at such date as following:
o First installment of $900,000 falling due upon
execution;
o Second installment of $450,000 falling due on or
before August 30, 2008;
o Third installment of $900,000 falling due on or
before November 30, 2008;
o Fourth and final installment of $1,350,000 falling
due on or before March 31, 2009.
Any payment shall be in United States funds by check, cash, by wire transfer or by other means of payment as shall have been agreed upon by the Purchaser and the Company prior to payment.
2.3 ISSUANCE AND DELIVERY. At the Closing, subject to the terms and conditions hereof, the Company shall deliver an irrevocable instruction to the Company's secretary to issue and deliver to Purchaser appropriate stock certificates, registered in the name of the Purchaser for the Shares, or his designee.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Purchaser as of the date hereof as follows, and all such representations and warranties shall be true and correct as of any Closing Date as if then made and shall survive the Closing.
3.1 ORGANIZATION. The Company is a corporation, duly incorporated, validly existing and in good standing under the laws of Nevada. The Company has all requisite power and authority to own or lease its properties and to conduct its business as now conducted. The Company holds all licenses and permits required for the conduct of its business as now conducted, which, if not obtained, would have a material adverse effect on the business, financial condition or results of operations of the Company taken as a whole. The Company is qualified as a foreign corporation and is in good standing in any states where the conduct of its business or its ownership or leasing of property requires such qualification, except where the failure to so qualify would not have a material adverse effect on the business, financial condition or results of operations of the Company taken as a whole.
3.2 CAPITALIZATION. The Company is authorized to issue 300,000,000 shares of Common Stock of which 23,879,350 shares are outstanding at the date of this Agreement. The Company is authorized to issue 10,000,000 shares of Preferred Stock of which no shares are outstanding at the date of this Agreement. All of the issued and outstanding shares of Common Stock on the Closing Date are or will have been duly authorized, validly issued and then fully paid and non-assessable. The Company's right to issue shares of its stock otherwise shall not be limited by any provision herein.
3.3 AUTHORITY. The Company has all requisite power and authority to enter into this Agreement, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, and upon their execution and delivery by the Company, such document will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
3.4 ISSUANCE OF SHARES. The Purchase Shares, when issued pursuant to the terms of this Agreement, will be duly and validly authorized and issued, fully paid and non-assessable.
3.5 NO CONFLICT WITH LAW OR DOCUMENTS. The execution, delivery and consummation of this Agreement, and the transactions contemplated hereby, will not (a) conflict with any provisions of the Articles of Incorporation or Bylaws of the Company; (b) result in any violation of or default or loss of a benefit under, or permit the acceleration of any obligation under (in each case, upon the giving of notice, the passage of time, or both), any mortgage, indenture, lease, agreement or other instrument, permit, franchise license, judgement, order, decree, law, ordinance, rule or regulation applicable to the Company.
3.6 CONSENTS, APPROVALS AND PRIVATE OFFERING. Except for any filings required under Federal and applicable state securities laws, all of which shall have been made as of the Closing Date to the extent required as of such time, no permit, consent, approval, order or authorization of, or registration, declaration or filing with, any Federal, state, local or foreign governmental authority is required to be made or obtained by the Company in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby and thereby.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents, warrants and covenants with the Company as follows:
4.1 LEGAL POWER. Purchaser has the requisite power, as appropriate, and is authorized to enter into this Agreement, to purchase the Purchase Shares hereunder, and to carry out and perform his, her or its obligations under the terms of this Agreement.
4.2 DUE EXECUTION. This Agreement has been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3 INVESTMENT REPRESENTATIONS.
Purchaser represents and agrees that:
4.3.1 Purchaser is acquiring the Purchase Shares for its
own account, not as a nominee or agent, for
investment and not with a view to or for resale in
connection with, any distribution or public offering
thereof within the meaning of the Securities Act of
1933, as amended (the "Act"), except pursuant to an
effective registration statement under the Act;
4.3.2 Purchaser is a professional and an 'accredited
investor,' as that term is defined in Rule 501 (a) of
Regulation D promulgated under the Act. Purchaser has
such knowledge and experience in financial and
business matters that it is fully able to evaluate
the merits and risks of the acquisition of the
Securities, and has conducted their own investigation
into the suitability of its investment, and reviewed
all the information that it considers necessary to
evaluate its acceptance of the Purchase Shares.
Purchaser is able to bear the risks associated with
accepting the Purchase Shares, including the risk of
loss of the entire investment in the Purchase Shares.
Purchaser has received and reviewed any and all
information Purchaser deemed necessary to evaluate
its investment.
4.3.3 Purchaser understands that the Purchase Shares have
not been registered under the Act by reason of a
specific exemption therefrom, and may not be
transferred or resold except pursuant to an effective
registration statement or exemption from registration
and each certificate representing the Purchase Shares
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will be endorsed with the following legend:
(i) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF A CURRENT AND EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT WITH RESPECT TO SUCH SHARES, OR AN OPINION OF THE ISSUER'S COUNSEL TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT; and
(ii) Any legend required to be placed thereon by
applicable federal or state securities laws.
4.3.4 Purchaser has read, and understands and agrees to the
Certificate of Designation for the Series A Preferred
Stock.
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5. TERM AND TERMINATION
5.1 TERM. This Agreement shall expire upon total payment of the Purchase Price and issuance of 600,000 shares of Preferred Stock Class A to Purchaser.
5.2. The Company may cancel this agreement upon
(i) any misrepresentation or omission of or on behalf of
the Purchaser made to the Company in connection with
this Agreement;
(ii) adjudication of bankruptcy, or filing of a petition
under any bankruptcy or debtor's relief law by or
against the Purchaser, or failure of the Purchaser to
generally pay its debts as they become due;
(iii) failure of the Purchaser to pay any installment
hereunder when due, which shall continue for ten (10)
days;
(iv) termination of the Promissory Note given by the
Purchaser to the Company in accordance with paragraph
2.2;
6. MISCELLANEOUS.
6.1 GOVERNING LAW . This Agreement shall be governed by and construed under the laws of the State of California.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and are binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
6.3 ENTIRE AGREEMENT. This Agreement and the other documents delivered pursuant hereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by a representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
6.4 SEVERABILITY. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
6.5 AMENDMENT AND WAIVER. Except as otherwise provided herein, any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and Purchaser. Any amendment or waiver effected in accordance with this Section shall be binding upon each future holder of any security purchased under this Agreement (including securities into which such securities have been converted) and the Company.
6.6 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective
when delivered personally, or sent by telex or telecopier
(with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested, or when received by
the addressee, if sent by Express Mail, Federal Express or
other express delivery service (receipt request) in each case
to the appropriate address set forth below.
If to the Company: PROTEO, INC.
Birge Bargmann
Proteo Biotech AG
Am Kiel-Kanal 44
D-24106 Kiel
If to Purchaser: FID Esprit AG
Joerg Alte
Rosengartenstr. 4
CH-8608 Bubikon
6.7 TITLES AND SUBTITLES. The titles of paragraphs and
subparagraphs of this Agreement are for convenience of
reference only and are not be not considered in construing
this Agreement.
6.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement the date first above written.
"COMPANY"
PROTEO, INC. a Nevada Corporation
By: /S/ BIRGE BARGMANN
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CEO: Birge Bargmann
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"PURCHASER"
FIDEsprit AG
By: /S/ JOERG ALTE
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Managing Director: Joerg Alte
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EXHIBIT 10.9
PROMISSORY NOTE
US $3,600,000.00
BUBIKON, SWITZERLAND
JUNE 9, 2008
FOR VALUED RECEIVED, the undersigned, a corporation duly organized under the laws of Switzerland, with its principal place of business at Rosengartenstr. 4, CH-8608 Bubikon, Switzerland, (the "Maker"), unconditionally promises to pay to the order of Proteo, Inc., a Nevada corporation, (the "Holder"), at its principal place of business at 2102 Business Center Drive, Suite 130, Irvine, CA 92612 or at such other place as may be designated in writing by the Holder, the principal sum of $3,600,000.00, with no interest.
Principal shall be payable in four installments as follows:
o First installment of $900,000 falling due upon execution;
o Second installment of $450,000 falling due on or before August
30, 2008;
o Third installment of $900,000 falling due on or before
November 30, 2008;
o Fourth and final installment of $1,350,000 falling due on or
before March 31, 2009
All payments under this Note shall be in lawful money of the United States.
In no event shall the interest and other charges in the nature of interest hereunder, if any, exceed the maximum amount of interest permitted by law. Any amount collected in excess of the maximum legal rate shall be applied to reduce the principal balance.
All payments under this Note shall be applied first to the late fees and costs, if any, and second to interest then due, if any, and to balance the principal.
The Maker agrees to pay to the holder all costs, expenses and reasonable attorney's fees incurred in the collection of sums due hereunder, whether through legal proceedings or otherwise, to the extent permitted by law.
This Note may be prepaid at any time, in whole or in part, without penalty or premium.
If any installment hereunder is not paid within ten (10) days of the date the same is due, the Maker shall pay to the holder a late charge equal to three percent (3%) of the overdue payment as liquidated damages, and not as a penalty.
After the maturity of this Note, or upon any default, this Note shall bear interest at the rate of ten percent (10%) per annum, at the option of the Holder.
At the option of the Holder, this entire Note shall become immediately due and payable, without demand and notice, upon the occurrence of any one of the following events:
(a) failure of the Maker to pay any installment hereunder when
due, which shall continue for ten (10) days;
(b) any misrepresentation or omission of or on behalf of Maker
made to the holder in connection with this loan;
(c) insolvency or failure of the Maker or any guarantor to
generally pay its debts as they become due;
(d) assignment for the benefit of creditors of, or appointment of
a receiver or other officer for, all or any part of Maker's or
any guarantor's property;
(e) adjudication of bankruptcy, or filing of a petition under any
bankruptcy or debtor's relief law by or against Maker or any
guarantor;
(f) death of Maker or any guarantor;
(g) sale or transfer, whether voluntary or involuntary, of all or
any interest in the property which is security for this Note;
or
(h) default under any mortgage, trust deed, security agreement or
other instrument securing this note, if any.
The Maker expressly waives presentment, demand, notice, protest, and all other demands and notices in connection with this Note. No renewal or extension of this Note, or release of any collateral or party liable hereunder, will release the liability of the Maker.
Failure of the Holder to exercise any right or option shall not constitute a waiver, nor shall it be a bar to the exercise of any right or any option at nay future time.
If any provision of this Note shall be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
This Note shall be governed by the laws of the state of California.
IN WHITNESS WHEREOF, this Promissory Note is executed under seal on the day and year first above written.
Executed: FIDEsprit AG:
/s/ Joerg Alte
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Joerg Alte
Managing Director
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GUARANTY
FOR VALUE RECEIVED, the undersigned Axel J. Kutscher, living at Oetwilerstr. 29, CH-8634 Hombrechtikon, Switzerland, as primary obligor, hereby unconditionally guarantees the prompt payment of principal and interest when due and all other obligations contained in the Promissory Note as of June 9, 2008 given by FIDESprit AG to Proteo, Inc. The undersigned accepts and agrees to be bound by all terms, conditions and waivers contained in the Note. The undersigned waives notice of acceptance of this guarantee and suretyship defenses of all kinds. The Holder may extend the time of payment, release any collateral or party reliable on the Note, or grant any indulgence to any party without releasing the liability of the undersigned. The Holder need not proceed against Maker or any other party or collateral prior to proceeding against the undersigned. The undersigned agrees to pay all costs, expenses and attorney's fees incurred by the Holder in enforcing the Note and this Guaranty.
Dated June 9, 2008.
Executed: Guarantor
/s/ Axel J. Kutscher
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Axel J. Kutscher
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