Exhibit 4.4
NO SALE OR TRANSFER OF THIS WARRANT OR THE SECURITIES
UNDERLYING THIS WARRANT MAY BE MADE UNTIL
THE EFFECTIVENESS OF A REGISTRATION STATEMENT
OR OF A POST-EFFECTIVE AMENDMENT THERETO
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"),
COVERING THIS WARRANT OR THE SECURITIES UNDERLYING
THIS WARRANT, OR UNTIL THE COMPANY IS IN RECEIPT OF AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT. TRANSFER OF
THIS WARRANT IS RESTRICTED UNDER PARAGRAPH 2 BELOW.
REPRESENTATIVE'S WARRANT TO PURCHASE
COMMON STOCK AND/OR REDEEMABLE WARRANTS
DISCAS, INC.
(a Delaware corporation)
Dated:______________ ___, 1997
THIS CERTIFIES THAT Roan Capital Partners L.P. (the representative of
the Underwriters (the "Representative"), and together with its assigns, the
"Holder") is entitled to purchase from Discas, Inc., a Delaware corporation
(the "Company"), for an aggregate price of $10, an option ("Purchase Option"),
during the period as hereinafter specified, for up to 80,000 shares of the
Company's common stock, $.0001 par value per share (the "Common Stock"), and
80,000 redeemable warrants (the "Warrants" and collectively with the Common
Stock, the "Securities"), at a purchase price of $6.75 per share of Common
Stock and $.14 per Warrant which Warrant is exercisable at $5.00 per share of
Common Stock (the "Exercise Price") (the "Representative's Warrant").
This Representative's Warrant is issued pursuant to an Underwriting
Agreement dated , 1997, between the Company and the Representative in
connection with a public offering through the Representative (the "Public
Offering") of 800,000
shares of Common Stock and 800,000 Warrants.
1. Exercise of the Representative's Warrant.
(a) The rights represented by this Representative's Warrant
shall be exercised at the prices and during the periods as follows: (i) During
the period from __________, __ 1997 to , 1998, inclusive, the Holder shall
have no right to purchase any Securities hereunder.
(ii) Between __________, __ 1998 and __________, __ 2002,
inclusive, the Holder shall have the option to purchase shares of Common Stock
and Warrants hereunder at a price of $6.75 and $.14, respectively, the
purchase price of the Common Stock and the Warrant being 135% of the public
offering price for the Securities set forth in the Prospectus forming a part
of the registration statement on Form SB-2 (File No. 333-_______) of the
Company, as amended (the "Registration Statement").
(iii) After ________ __, 2002, the Holder shall have no
right to purchase any Securities hereunder and this Representative's Warrant
shall expire effective at 5:00 p.m., New York time.
(b) The rights represented by this Representative's Warrant
may be exercised at any time within the period above specified, in whole or in
part, by (i) the surrender of this Representative's Warrant (with the purchase
form at the end hereof properly executed) at the principal executive of office
of the Company (or such other of office or agency of the Company as it may
designate by notice in writing to the Holder at the address of the
Holder appearing on the books of the Company); (ii) payment to the
Company of the Exercise Price then in effect for the number of shares of
Common Stock and Warrants specified in the above-mentioned purchase form
together with applicable stock transfer taxes, if any; and (iii) delivery to
the Company of a duly executed agreement signed by the person(s) designated in
the purchase form to the effect that such person(s) agree(s) to be bound by
the provisions of Paragraph 5 and subparagraphs (b), (c) and (d) of Paragraph
6 hereof. This Representative's Warrant shall be deemed to have been
exercised, in whole or in part to the extent specified, immediately prior to
the close of business on the date this Representative's Warrant is surrendered
and payment is made in accordance with the foregoing provisions of this
Paragraph 1, and the person or persons in whose name or names the certificates
for the Securities shall be issuable upon such exercise shall become the
Holder or Holders of record of such Common Stock and Warrants at that time and
date. The Common Stock and Warrants so purchased shall be delivered to the
Holder within a reasonable time, not exceeding ten (10) business days, after
the rights represented by this Representative's Warrant shall have been so
exercised.
2. Restrictions on Transfer.
This Representative's Warrant shall not be transferred,
sold, assigned, or hypothecated for a period of one year commencing _______
__, 1997, except that it may be transferred to successors of the Holder, and
may be assigned in whole or in part to any person who is an of officer of the
Representative or an officer or partner of any other member of the
underwriting syndicate or selling group member during such period; and after
such one-year period, such a transfer may occur providing the Representative's
Warrant is exercised immediately upon transfer, and if not exercised
immediately on transfer, the Representative's Warrant shall lapse. Any such
assignment shall be effected by the Holder by (i) completing and executing the
form of assignment at the end hereof and (ii) surrendering this
Representative's Warrant with such duly completed and executed assignment form
for cancellation, accompanied by funds sufficient to pay any transfer tax, at
the office or agency of the Company referred to in Paragraph 1 hereof,
accompanied by a certificate (signed by a duly authorized representative of
the Holder), stating that each transferee is a permitted transferee under this
Paragraph 2 hereof; whereupon the Company shall issue, in the name or names
specified by the Holder (including the Holder) a new Representative's Warrant
or Representative's Warrants of like tenor and representing in the aggregate
rights to purchase the same number of Securities as are then purchasable
hereunder.
3. Covenants of the Company.
(a) The Company covenants and agrees that all Common Stock
and Common Stock issuable upon exercise of the Warrants will,
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upon issuance, be duly and validly issued, fully paid and nonassessable and no
personal liability will attach to the holder thereof by reason of being such a
holder, other than as set forth herein.
(b) The Company covenants and agrees that during the period
within which this Representative's Warrant may be exercised, the Company will
at all times have authorized and reserved a sufficient number of shares of
Common Stock to provide for the exercise of this Representative's Warrant and
the Warrants included therein.
(c) The Company covenants and agrees that for so long as the
Securities shall be outstanding, the Company shall use its best efforts to
cause all shares of Common Stock issuable upon the exercise of the
Representative's Warrant and the Warrants contained therein, to be listed on
or quoted by the Nasdaq National Market System or on the Nasdaq SmallCap
Market.
4. No Rights of Stockholder.
This Representative's Warrant shall not entitle the Holder
to any voting rights or other rights as a stockholder of the Company, either
at law or in equity, and the rights of the Holder are limited to those
expressed in this Representative's Warrant and are not enforceable against the
Company except to the extent set forth herein.
5. Registration Rights.
(a) The Company shall advise the Holder or its transferee,
whether the Holder holds this Representative's Warrant or has exercised this
Representative's Warrant and holds Common Stock and Warrants, or Common Stock
underlying the Warrants (the "Warrant Shares"), by written notice at least 30
days prior to the filing of any post-effective amendment to the Registration
Statement or of any new registration statement or post-effective amendment
thereto under the Act, covering any securities of the Company, for its own
account or for the account of others, and will for a period of four years from
, 1998 upon the request of the Holder, include in any such post-effective
amendment or registration statement such information as may be required to
permit a public offering of any of the Common Stock or Warrants issuable
hereunder, and/or the Warrant Shares (the "Registerable Securities"), provided
however that this Section 5(a) is not applicable to any registration statement
by the Company on Forms S-4 or S-8 (including any Form S-3 related to such
Form S-8) or any other comparable form. The Company shall supply prospectuses
in order to facilitate the public sale or other disposition of the
Registerable Securities, use its best efforts to register and
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qualify any of the Registerable Securities for sale in such states as such
Holder reasonably designates, provided such qualification is not solely for
the purpose of subjecting the Company to jurisdiction in that state or is not
unduly burdensome, and do any and all other acts and things which may be
necessary to enable such Holder to consummate the public sale of the
Registerable Securities, and furnish indemnification in the manner provided in
Paragraph 6 hereof. The Holder shall furnish information reasonably requested
by the Company in accordance with such post-effective amendments or
registration statements, including its intentions with respect thereto, and
shall furnish indemnification as set forth in Paragraph 6. The Company shall
continue to advise the Holders of the Registerable Securities of its intention
to file a registration statement or amendment pursuant to this Paragraph 5(a)
until the earlier of (i) __________, __ 2002; or (ii) such time as all of the
Registerable Securities have been registered and sold under the Act.
(b) If any fifty-one (51 %) percent holder (as defined
below) shall give notice to the Company at any time during the four (4) year
period beginning one (1) year from , 1997 to the effect that such holder
desires to register under the Act any Registerable Securities, under such
circumstances that a public distribution (within the meaning of the Act) of
any such Registerable Securities will be involved, then the Company will as
promptly as practicable after receipt of such notice, but not later than
thirty (30) days after receipt of such notice, file a post effective amendment
to the current Registration Statement or a new registration statement pursuant
to the Act to the end that the Registerable Securities may be publicly sold
under the Act as promptly as practicable thereafter and the Company will use
its best efforts to cause such registration to become and remain effective as
provided herein (including the taking of such steps as are necessary to obtain
the removal of any stop order); provided, that such fifty-one (51%) percent
holder shall furnish the Company with appropriate information in connection
therewith as the Company may reasonably request; and provided, further, that
the Company shall not be required to file such a post effective amendment or
registration statement on more than one occasion at its expense. The Company
will maintain such registration statement or post-effective amendment current
under the Act for a period of at least six (6) months from the effective date
thereof. The Company shall supply prospectuses in order to facilitate the
public sale of the Registerable Securities, use its best efforts to register
and qualify any of the Registerable Securities for sale in such states as such
holder reasonably designates, provided such qualification is not solely for
the purpose of subjecting the Company to jurisdiction in that state or is not
unduly burdensome, and furnish indemnification in the manner provided in
Paragraph 6 hereof.
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(c) The Holder may, in accordance with Paragraphs 5(a) or
(b), at his or its option, and subject to the limitations set forth in
Paragraph 1(a) hereof, request the registration of any of the Registerable
Securities in a filing made by the Company prior to the acquisition of the
Securities upon exercise of this Representative's Warrant. The Holder may
thereafter exercise the Warrants at any time or from time to time subsequent
to the effectiveness under the Act of the registration statement in which the
Common Stock underlying the Representative's Warrants and Warrants were
included.
(d) The term "51% holder," as used in this Paragraph 5,
shall include any owner or combination of owners of Representative's Warrants
or Registerable Securities if the aggregate number of Common Shares and
Warrant Shares included in and underlying the Representative's Warrants and
Registerable Securities held of record by it or them, would constitute a
majority of the aggregate of such Common Shares and Warrant Shares.
(e) The following provisions of this Paragraph 5 shall
also be applicable:
(i) Within ten (10) days after receiving any notice pursuant
to Paragraph 5(b), the Company shall give notice to the other Holders of
Representative's Warrants or Registerable Securities, advising that the
Company is proceeding with such post-effective amendment or registration and
offering to include therein the Registerable Securities of such other Holders,
provided that they shall furnish the Company with all information in
connection therewith as shall be necessary or appropriate and as the Company
shall reasonably request in writing. Following the effective date of such
post-effective amendment or registration, the Company shall, upon the request
of any Holder of Registerable Securities, forthwith supply such number of
prospectuses meeting the requirements of the Act, as shall be reasonably
requested by such Holder. The Company shall use its best efforts to qualify
the Registerable Securities for sale in such states as the 51% holder shall
designate, provided such qualification is not solely for the purpose of
subjecting the Company to jurisdiction in that state or is not unduly
burdensome, at such times as the registration statement is effective under the
Act.
(ii) The Company shall bear the entire cost and expense of
any registration of securities initiated by it under Paragraph 5(a) hereof
notwithstanding that the Registerable Securities subject to this
Representative's Warrant may be included in any such registration. The Company
shall also comply with one request for registration made by the 51% holder
pursuant to Paragraph 5(b) hereof at the Company's own expense and without
charge to any holder of the Registerable Securities, and with one request at
the
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expense of the Holders thereof. Notwithstanding the foregoing, any Holder
whose Registerable Securities are included in any such registration statement
pursuant to this Paragraph 5 shall, however, bear the fees of any counsel
retained by him and any transfer taxes or underwriting discounts or
commissions applicable to the Registerable Securities sold by him pursuant
thereto and, in the case of a registration pursuant to Paragraph 5(a) hereof,
any additional registration fees attributable to the registration of such
Holder's Registerable Securities.
(iii) If the managing underwriter in any such underwritten
offering shall advise the Company that it declines to include a portion or all
of the Registerable Securities requested by the Holders to be included in the
registration statement, then distribution of all or a specified portion of the
Registerable Securities shall be excluded from such registration statement (in
case of an exclusion as to a portion of such Registerable Securities, such
portion to be allocated among such Holders in proportion to the respective
numbers of Registerable Securities requested to be registered by each such
Holder). In such event the Company shall give the Holder prompt notice of the
number of Registerable Securities excluded. Further, in such event the
Company shall, within six (6) months of the completion of such subsequent
offering, file and use its best efforts to have declared effective, at its
sole expense, a registration statement relating to such excluded securities.
6. Indemnification.
(a) Whenever pursuant to Paragraph 5, a registration
statement relating to any Registerable Securities is filed under the Act,
amended or supplemented, the Company will indemnify and hold harmless each
Holder of the Registerable Securities covered by such registration statement,
amendment or supplement (such holder hereinafter referred to as the
"Distributing Holder"), each person, if any, who controls (within the meaning
of the Act) the Distributing Holder, and each officer, employee, partner or
agent of the Distributing Holder, if the Distributing Holder is a broker or
dealer, against any losses, claims, damages or liabilities, joint or several,
to which the Distributing Holder may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any such
registration statement or any preliminary prospectus or final prospectus
constituting a part thereof or any amendment or supplement thereto, or arise
out of or are based upon the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse the Distributing Holder for any legal or other
expenses reasonably incurred by the
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Distributing Holder, in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case (i) to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in said
registration statement, said preliminary prospectus, said final prospectus or
said amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder, any other Distributing
Holder or any such underwriter for use in the preparation thereof, and (ii)
such losses, claims, damages or liabilities arise out of or are based upon any
actual or alleged untrue statement or omission made in or from any preliminary
prospectus, but corrected in the final prospectus, as amended or supplemented.
(b) Whenever pursuant to Paragraph 5 a registration
statement relating to the Registerable Securities is filed under
the Act, or is amended or supplemented, the Distributing Holder will indemnify
and hold harmless the Company, each of its directors, each of its of officers
who have signed said registration statement and such amendments and
supplements thereto, and each person, if any, who controls the Company (within
the meaning of the Act) against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue or alleged untrue statement of any material fact
contained in any such registration statement or any preliminary prospectus or
final prospectus constituting a part thereof, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent that such untrue statement or alleged untrue
statement or omission was made in said registration statement, said
preliminary prospectus, said final prospectus or said amendment or supplement
in reliance upon and in conformity with written information furnished by such
Distributing Holder for use in the preparation thereof; and will reimburse the
Company or any such director, officer or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
this Paragraph 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party, give the indemnifying party notice of the commencement
thereof; but the omission to so notify the
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indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Paragraph 6.
(d) In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election to so assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Paragraph 6 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
7. Adjustments of Exercise Price and Number of Securities.
(a) The Warrant Price shall be subject to adjustment from
time to time as follows:
(1) In case the Company shall at any time after the date
hereof pay a dividend in shares of Common Stock or make a distribution in
shares of Common Stock, then upon such dividend or distribution the Warrant
Price in effect immediately prior to such dividend or distribution shall
forthwith be reduced to a price determined by dividing:
(a) an amount equal to the total number of shares
of Common Stock outstanding immediately prior to such dividend or distribution
multiplied by the Warrant Price in effect immediately prior to such dividend
or distribution, by
(b) the total number of shares of Common Stock
outstanding immediately after such issuance or sale.
For the purposes of any computation to be made in accordance with the
provisions of this clause (i), the following provisions shall be applicable:
Common Stock issuable by way of dividend or other distribution on any stock of
the Company shall he deemed to have been issued immediately after the opening
of business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution.
(2) In case the Company shall at any time subdivide or
combine the outstanding Common Stock, the Warrant Price shall forthwith be
proportionately decreased in the case of subdivision or increased in the case
of combination to the nearest one cent.
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Any such adjustment shall become effective at the time such subdivision or
combination shall become effective.
(3) Within a reasonable time after the close of each
quarterly fiscal period of the Company during which the Warrant Price has been
adjusted as herein provided, the Company shall:
(a) Deliver to the Representative a certificate
signed by the President or Vice President of the Company and by the
Treasurer or Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, showing in detail the facts requiring all such
adjustments occurring during such period and the Warrant Price after each such
adjustment.
(b) Notwithstanding anything contained herein to
the contrary, no adjustment of the Warrant Price shall be made if the amount
of such adjustment shall be less than $.05, but in such case any adjustment
that would otherwise be required then to be made shall be carried forward and
shall be made at the time and together with the next subsequent adjustment
which, together with any adjustment so carried forward, shall amount to not
less than $.05.
(b) In the event that the number of outstanding shares of
Common Stock is increased by a stock dividend payable in Common Stock or by a
subdivision of the outstanding Common Stock, then, from and after the time at
which the adjusted Warrant Price becomes effective pursuant to Subsection (b)
of this Section by reason of such dividend or subdivision, the number of
shares of Common Stock issuable upon the exercise of each Warrant shall be
increased in proportion to such increase in outstanding shares. In the event
that the number of shares of Common Stock outstanding is decreased by a
combination of the outstanding Common Stock, then, from and after the time at
which the adjusted Warrant Price becomes effective pursuant to Subsection (b)
of this Section by reason of such combination, the number of shares of Common
Stock issuable upon the exercise of each Warrant shall be decreased in
proportion to such decrease in the outstanding shares of Common Stock.
(c) In case of any reorganization or reclassification of the
outstanding Common Stock (other than a change in par value, or from par value
to no par value, or as a result of a subdivision or combination), or in case
of any consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation and which does not result in any
reclassification of the outstanding Common Stock), 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, the holder of each
9
Warrant then outstanding shall thereafter have the right to purchase the kind
and amount of shares of Common Stock and/or other securities and property
receivable upon such reorganization, reclassification, consolidation, merger,
sale or conveyance by a holder of the number of shares of Common Stock which
the holder of such Warrant shall then be entitled to purchase; such
adjustments shall apply with respect to all such changes occurring between the
date of this Warrant Agreement and the date of exercise of such Warrant.
(d) Subject to the provisions of this Section, in case the
Company shall, at any time prior to the exercise of the Warrants, make any
distribution of its assets to holders of its Common Stock as a liquidating or
a partial liquidating dividend, then the holder of Warrants who exercises his
Warrants after the record date for the determination of those holders of
Common Stock entitled to such distribution of assets as a liquidating or
partial liquidating dividend shall be entitled to receive for the Warrant
Price per Warrant, in addition to each share of Common Stock, the amount of
such distribution (or, at the option of the Company, a sum equal to the value
of any such assets at the time of such distribution as determined by the Board
of Directors of the Company in good faith), which would have been payable to
such holder had he been the holder of record of the Common Stock receivable
upon exercise of his Warrant on the record date for the determination of those
entitled to such distribution.
(e) In case of the dissolution, liquidation or winding-up of
the Company, all rights under the Warrants shall terminate on a date fixed by
the Company, such date to be no earlier than ten (10) days prior to the
effectiveness of such dissolution, liquidation or winding-up and not later
than five (5) days prior to such effectiveness. Notice of such termination of
purchase rights shall be given to the last registered holder of the Warrants,
as the same shall appear on the books of the Company maintained by the Warrant
Agent, by registered mail at least thirty (30) days prior to such termination
date.
(f) In case the Company shall, at any time prior to the
expiration of the Warrants and prior to the exercise thereof, offer to the
holders of its Common Stock any rights to subscribe for additional shares of
any class of the Company, then the Company shall give written notice thereof
to the last registered holder thereof not less than thirty (30) days prior to
the date on which the books of the Company are closed or a record date is
fixed for the determination of the stockholders entitled to such subscription
rights. Such notice shall specify the date as to which the books shall be
closed or record date fixed with respect to such offer of subscription and the
right of the holder thereof to participate in
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such offer of subscription shall terminate if the Warrant shall not be
exercised on or before the date of such closing of the books or such record
date.
(g) Any adjustment pursuant to the aforesaid provisions
shall be made on the basis of the number of shares of Common Stock which the
holder thereof would have been entitled to acquire by the exercise of the
Warrant immediately prior to the event giving rise to such adjustment.
(h) Irrespective of any adjustments in the Warrant Price or
the number or kind of shares purchasable upon exercise of the Warrants,
Warrants previously or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the similar Warrants
initially issuable pursuant to this Warrant Agreement.
(i) The Company may retain a firm of independent public
accountants (who may be any such firm regularly employed by the Company) to
make any computation required under this Section, and any certificate setting
forth such computation signed by such firm shall be conclusive evidence of the
correctness of any computation made under this Section.
(j) If at any time, as a result of an adjustment made
pursuant to paragraph (d) above, the holders of a Warrant or Warrants shall
become entitled to purchase any securities other than shares of Common Stock,
thereafter the number of such securities so purchasable upon exercise of each
Warrant and the Warrant Price for such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common Stock contained in paragraphs (b)
and (c).
(k) No adjustment to the Warrant Price or to the number of
shares of Common Stock purchasable upon the exercise of such Warrants will be
made, however under the following circumstances:
(i) upon the grant or exercise of any of the options
presently outstanding (or options which may hereafter be granted and/or
exercised) under the Company's 1997 Stock Option Plan for officers, directors
and/or employees, consultants and similar situated parties of the Company; or
(ii) upon the sale or exercise of the Warrants issued to
the public pursuant to the ________ __, 1997 Prospectus; or
(iii) upon exercise of this Warrant; or
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(iv) upon exercise or sale of the Warrants issuable upon
exercise of the Representative's Warrant; or
(v) upon any amendment to or change in the term of any rights or
warrants to subscribe for or purchase, or options for the purchase of Common
Stock or convertible securities, including, but not limited to, any extension
of any expiration date of any such right, warrant or option, any change in any
exercise or purchase price provided for in any such right, warrant or option,
any extension of any date through which any convertible securities are
convertible into or exchangeable for Common Stock or any change in the rate at
which any convertible securities are convertible into or exchangeable for
Common Stock (other than rights, warrants, options or convertible securities
issued or sold after the close of business on the date of the original issue
of the Common Stock, (i) for presently outstanding securities, or (ii) for
which an adjustment in the Warrant Price then in effect was theretofore made
or required to be made, upon issuance or sale thereof).
8. Fractional Shares.
(a) The Company shall not be required to issue fractions of
shares of Common Shares on the exercise of the Warrants subject to this
Representative's Warrant. The Company shall not be obligated to issue any
fractional share interests or fractional warrant interests upon the exercise
of any Warrant or Warrants, nor shall it be obligated to issue scrip or pay
cash in lieu of fractional interests, provided, however, that if a holder
exercises all the Warrants held of record by such holder, the fractional
interests shall be eliminated by rounding any fraction up to the nearest whole
number of shares.
(b) The Holder of this Representative's Warrant, by
acceptance hereof, expressly waives his right to receive any fractional share
of Common Stock upon exercise of the Warrants subject to this Underwriter's
Warrant.
9. Redemption of Warrants underlying the Representative's
Warrant.
The Warrants underlying the Representative's Warrant shall not be
subject to redemption by the Company until they have been exercised and the
underlying Warrants are outstanding.
10. Miscellaneous.
(a) This Representative's Warrant shall be governed by and
in accordance with the laws of the State of New York.
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(b) All notices, requests, consents and other communications
hereunder shall be made in writing and shall be deemed to have been duly made
when delivered, or mailed by registered or certified mail, return receipt
requested: (i) if to a Holder, to the address of such Holder as shown on the
books of the Company, or (ii) if to the Company, 567-1 South Leonard Street,
Waterbury, Connecticut 06708.
(c) The Company and the Representative may from time to time
supplement or amend this Representative's Warrant without the approval of any
other Holders in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Representative may deem
necessary or desirable and which the Company and the Representative deem not
to adversely affect the interest of the Holders.
(d) All the covenants and provisions of this
Representative's Warrant by or for the benefit of the Company and the Holders
inure to the benefit of their respective successors and assigns hereunder.
(e) Nothing in this Underwriter's Warrant shall be construed
to give to any person or corporation other than the Company and the
Representative and any other registered Holder or Holders, any legal or
equitable right and that any such right is for the sole and exclusive benefit
of the Company and the Underwriter and any other Holder or Holders.
(f) This Representative's Warrant may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, Discas, Inc. has caused this
Representative's Warrant to be signed by its duly authorized
officer and this Representative's Warrant to be dated __________, __
1997.
DISCAS, INC.
By:___________________________
Patrick A. DePaolo, President
PURCHASE FORM
(To be signed only upon exercise of the Representative's Warrant)
The undersigned, the Holder of the foregoing Representative's
Warrant, hereby irrevocably elects to exercise the purchase rights represented
by such Representative's Warrant for, and to purchase thereunder, ________
shares of Common Stock and/or ___ Warrants of Discas, Inc. and herewith makes
payment of $______ thereof, and requests that the certificates for Common
Stock/or Warrants be issued in the name(s) of, and delivered to ____________
whose address(es) is (are) ___________________________
Dated: __________________
_________________________
_________________________
Address
TRANSFER FORM
(To be signed only upon transfer of the Representative's Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _______________________ the right to purchase shares of Common
Stock and/or Warrants of Discas, Inc. represented by the foregoing
Representative's Warrant to the extent of _____________ shares of Common Stock
and/or ____ Warrants, and appoints ______________, attorney to transfer such
rights on the books of Discas, Inc., with full power of substitution in the
premises.
Dated:__________________
________________________
(name of holder)
________________________
Address
________________________
In the presence of:
________________________
________________________