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 $8.25 per share of Common
Stock and $.165 per Warrant which Warrant is exercisable at $6.25 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 $8.25 and $.165, respectively, the
purchase price of the Common Stock and the Warrant being 165% 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. 333-26543) 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 or partner 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.
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(a) The Company covenants and agrees that all Common Stock and
Common Stock issuable upon exercise of the Warrants will, 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
3
prospectuses in order to facilitate the public sale or other disposition 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 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
4
jurisdiction in that state or is not unduly burdensome, and furnish
indemnification in the manner provided in Paragraph 6 hereof.
(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
5
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 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
6
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 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
7
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 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.
8
(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. 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
9
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 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
10
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 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
11
(iii) upon exercise of this Warrant; or
(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 Representative'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.
12
(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 Representative'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:
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Patrick A. DePaolo, President
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PURCHASE FORM
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(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:
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- ----------------------------------
- ----------------------------------
Address
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TRANSFER FORM
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(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:
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- ----------------------------------
(name of holder)
- ----------------------------------
Address
- ----------------------------------
In the presence of:
- ----------------------------------
- ----------------------------------
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