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EXHIBIT 4.4
REPRESENTATIVE'S WARRANT AGREEMENT (the "Representative's
Warrant Agreement" or "Agreement"), dated as of ________, 1997, between DIDAX
INC. (the "Company"), and XXXXXX XXXXX SECURITIES, INC. (the "Representative").
W I T N E S S E T H:
WHEREAS, the Representative has agreed, pursuant to the
underwriting agreement (the "Underwriting Agreement") dated as of the date
hereof between the Company and the Representative, to act as the Representative
of the Underwriters in connection with the Company's proposed public offering
of 2,000,000 shares of the Company's Common Stock at $5.00 per share and
2,000,000 Warrants ("Public Warrants") at $.125 per warrant (the "Public
Offering"); and
WHEREAS, the Company proposes to issue to the Representative
and/or persons related to the Representative as those persons are defined in
Rule 2710 of the NASD Conduct Rules (the "Holder"), 200,000 warrants ("Common
Stock Representative Warrants") to purchase 200,000 shares of the Company's
Common stock (the "Shares") and 200,000 warrants ("Warrant Representative
Warrants") to purchase 200,000 Common Stock Purchase Warrants ("Underlying
Warrants") exercisable to purchase 200,000 shares of the Company's Common
Stock. The "Common Stock Representative Warrants" and the "Warrant
Representative Warrants" are collectively referred to as the "Warrants". The
"Shares" and the "Underlying Warrants" are collectively referred to as the
"Warrant Securities"; and
WHEREAS, the Warrants to be issued pursuant to this Agreement
will be issued on the Closing Date (as such term is defined in the Underwriting
Agreement) by the Company to the Holders in consideration for, and as part of
the compensation in connection with, the Representative acting as
Representative pursuant to the Underwriting Agreement.
NOW, THEREFORE, in consideration of the premises, the payment
by the Representative to the Company of TEN DOLLARS AND NO CENTS ($10.00), the
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Grant and Period.
The Public Offering has been registered under a Registration
Statement on Form SB-2 (File No. __________) and declared effective by the
Securities and Exchange Commission (the "SEC" or "Commission") on ___________,
1997 (the "Effective Date"). This Agreement, relating to the purchase of the
Warrants, is entered
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into pursuant to the Underwriting Agreement between the Company and the
Representative, as representative of the Underwriters, in connection with the
Public Offering.
Pursuant to the Warrants, the Holders are hereby granted the
right to purchase from the Company, at any time during the period commencing on
the Effective Date and expiring five (5) years thereafter (the "Expiration
Time"), up to 200,000 Shares at an initial exercise price (subject to
adjustment as provided in Article 8 hereof) of $8.25 per share (165% of the
public offering price) and/or 200,000 non-redeemable Underlying Warrants at an
initial exercise price of $.20625 per warrant (165% of the public offering
price) (the "Exercise Price" or "Purchase Price"), subject to the terms and
conditions of this Agreement. Each Underlying Warrant is exercisable to
purchase one (1) share of Common Stock at $8.25 per share during the five (5)
year period commencing on the Effective Date.
Except as specifically otherwise provided herein, the Shares
and the Underlying Warrants constituting the Warrant Securities shall bear the
same terms and conditions as such securities described under the caption
"Description of Securities" in the Registration Statement, and as designated in
the Company's Articles of Incorporation and any amendments thereto, and the
Underlying Warrants shall be governed by the terms of the Warrant Agreement
executed in connection with the Company's public offering (the "Warrant
Agreement"), except as provided herein, and the Holders shall have registration
rights under the Securities Act of 1933, as amended (the "Act"), for the
Warrants, the Shares, the Underlying Warrants, and the shares of Common Stock
underlying the Underlying Warrants, as more fully described in paragraph seven
(7) of this Representative's Warrant Agreement. In the event of any extension
or change of the expiration date or reduction or change of the exercise price
of the Public Warrants, the same such changes to the Underlying Warrants shall
be simultaneously effected, except that the Underlying Warrants shall expire no
later than five (5) years from the Effective Date.
2. Warrant Certificates.
The warrant certificates (the "Warrant Certificate") delivered
and to be delivered pursuant to this Agreement shall be in the form set forth
in the form of Warrant Certificate, attached hereto and made a part hereof,
with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. Exercise of Warrant.
3.1 Full Exercise.
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(i) The Holder hereof may effect a cash exercise
of the Common Stock Representative Warrants and/or the Warrant
Representative Warrants and/or the Underlying Warrants by
surrendering the Warrant Certificate, together with a
Subscription in the form of Exhibit "A" attached thereto, duly
executed by such Holder to the Company, at any time prior to
the Expiration Time, at the Company's principal office,
accompanied by payment in cash or by certified or official
bank check payable to the order of the Company in the amount
of the aggregate purchase price (the "Aggregate Price"),
subject to any adjustments provided for in this Agreement. The
aggregate price hereunder for each Holder shall be equal to
the exercise price as set forth in Section six (6) hereof
multiplied by the number of Warrants, Underlying Warrants or
Shares that are the subject of each Holder's Warrant (as
adjusted as hereinafter provided).
(ii) The Holder hereof may effect a cashless
exercise of the Common Stock Representative Warrants and/or
the Underlying Warrants by delivering the Warrant Certificate
to the Company together with a Subscription in the form of
Exhibit "B" attached thereto, duly executed by such Holder, in
which case no payment of cash will be required. Upon such
cashless exercise, the number of Shares to be purchased by
each Holder hereof shall be determined by dividing: (i) the
number obtained by multiplying the number of Shares that are
the subject of each Holder's Warrant Certificate by the
amount, if any, by which the then Market Value (as hereinafter
defined) exceeds the Purchase Price; by (ii) the per share
purchase price. In no event shall the Company be obligated to
issue any fractional securities and, at the time it causes a
certificate or certificates to be issued, it shall pay the
Holder in lieu of any fractional securities or shares to which
such Holder would otherwise be entitled, by the Company check,
in an amount equal to such fraction multiplied by the Market
Value. The Market Value shall be determined on a per Share
basis as of the close of the business day preceding the
exercise, which determination shall be made as follows: (a) if
the Common Stock is listed for trading on a national or
regional stock exchange or is included on the NASDAQ National
Market or Small-Cap Market, the average closing sale price
quoted on such exchange or the NASDAQ National Market or
Small-Cap Market which is published in The Wall Street Journal
for the ten (10) trading days immediately preceding the date
of exercise, or if no trade of the Common Stock shall have
been reported during such period, the last sale price so
quoted for the next day prior thereto on which a trade in the
Common Stock was so reported; or (b) if the Common Stock is
not so
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listed, admitted to trading or included, the average of the
closing highest reported bid and lowest reported ask price as
quoted on the National Association of Securities Dealer's OTC
Bulletin Board or in the "pink sheets" published by the
National Daily Quotation Bureau for the first day immediately
preceding the date of exercise on which the Common Stock is
traded.
3.2 Partial Exercise. The securities referred to in
paragraph 3.1 above also may be exercised from time to time in part by
surrendering the Warrant Certificate in the manner specified in Section 3.1
hereof, except that with respect to a cash exercise, the Purchase Price payable
shall be equal to the number of securities being purchased hereunder multiplied
by the per security Purchase Price, subject to any adjustments provided for in
this Agreement. Upon any such partial exercise, the Company, at its expense,
will forthwith issue to the Holder hereof a new Warrant Certificate or Warrants
of like tenor calling in the aggregate for the number of securities (as
constituted as of the date hereof) for which the Warrant Certificate shall not
have been exercised, issued in the name of the Holder hereof or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct.
4. Issuance of Certificates.
Upon the exercise of the Warrants and/or the Underlying
Warrants, the issuance of certificates for the shares of Common Stock and/or
other securities shall be made forthwith (and in any event within three (3)
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Sections 5
and 7 hereof) be issued in the name of, or in such names as may be directed by,
the Holder thereof; provided, however, that the Company shall not be required
to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the
shares of Common Stock and/or other securities shall be executed on behalf of
the Company by the manual or facsimile signature of the then present Chairman
or Vice Chairman of the Board of Directors or President or Vice President of
the Company under its corporate seal reproduced thereon, attested to by the
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manual or facsimile signature of the then present Secretary or Assistant
Secretary of the Company. Warrant Certificates shall be dated the date of
execution by the Company upon initial issuance, division, exchange,
substitution or transfer.
5. Restriction On Transfer of Warrants.
The Holder of a Warrant Certificate, by acceptance thereof,
covenants and agrees that the Warrants may not be sold, transferred, assigned,
hypothecated or otherwise disposed of, in whole or in part, for a period of one
(1) year from the Effective Date of the Public Offering, except (a) to officers
of the Representative or to officers and partners of the other Underwriters or
Selected Dealers participating in the Public Offering; (b) by will; or (c) by
operation of law.
6. Exercise Price.
6.1 Initial and Adjusted Exercise Prices.
The initial exercise price of each Common Stock Representative
Warrant shall be $8.25 per share (165% of the public offering price). The
initial exercise price of each Warrant Representative Warrant shall be $.20625
per Underlying Warrant (165% of the public offering price). The initial
exercise price of each Underlying Warrant shall be $8.25 per share. The
adjusted exercise price shall be the price which shall result from time to time
from any and all adjustments of the initial exercise price in accordance with
the provisions of Section 8 hereof. The Warrant Representative Warrants and
the Underlying Warrants are exercisable during the five (5) year period
commencing on the Effective Date.
6.2 Exercise Price.
The term "Exercise Price" herein shall mean the initial
exercise price or the adjusted exercise price, depending upon the context.
7. Registration Rights.
7.1 Registration Under the Securities Act of 1933.
The Warrants, the Shares, the Underlying Warrants and the
shares of Common Stock issuable upon exercise of the Underlying Warrants
(collectively the "Registrable Securities") have been registered under the
Securities Act of 1933, as amended (the "Act"). Upon exercise, in part or in
whole, of the Warrants, certificates representing the Shares, the Underlying
Warrants and/or the shares of Common Stock issuable upon exercise of the
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Underlying Warrants shall bear the following legend in the event there is no
current registration statement effective with the Commission at such time as to
such securities:
The securities represented by this certificate may not be
offered or sold except pursuant to (i) an effective
registration statement under the Act, (ii) to the extent
applicable, Rule 144 under the Act (or any similar rule under
such Act relating to the disposition of securities), or (iii)
an opinion of counsel, if such opinion shall be reasonably
satisfactory to counsel to the issuer, that an exemption from
registration under such Act and applicable state securities
laws is available.
7.2 Piggyback Registration.
If, at any time commencing after the Effective Date of the
offering and expiring seven (7) years thereafter, the Company prepares and
files a post-effective amendment to the Registration Statement, or a new
Registration Statement under the Act, or files a Notification on Form 1-A or
otherwise registers securities under the Act, or files a similar disclosure
document with the Commission (collectively the "Registration Documents") as to
any of its securities under the Act (other than under a Registration Statement
pursuant to Form S-8), it will give written notice by registered mail, at least
thirty (30) days prior to the filing of each such Registration Document, to the
Representative and to all other Holders of the Registrable Securities of its
intention to do so. If the Representative and/or other Holders of the
Registrable Securities notify the Company within twenty (20) days after receipt
of any such notice of its or their desire to include any such Registrable
Securities in such proposed Registration Documents, the Company shall afford
the Representative and such Holders of such Registrable Securities the
opportunity to have any Registrable Securities registered under such
Registration Documents or any other available Registration Document.
Notwithstanding the provisions of this Section 7.2, the
Company shall have the right at any time after it shall have given written
notice pursuant to this Section 7.2 (irrespective of whether a written request
for inclusion of any such securities shall have been made) to elect not to file
any such proposed registration statement, or to withdraw the same after the
filing but prior to the effective date thereof.
7.3 Demand Registration.
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(a) At any time commencing one (1) year after the
Effective Date of the Public Offering, and expiring four (4) years thereafter,
the Holders of Registrable Securities representing more than 50% of such
securities at that time outstanding shall have the right (which right is in
addition to the registration rights under Section 7.2 hereof), exercisable by
written notice to the Company, to have the Company prepare and file with the
Commission, on one occasion, a registration statement and/or such other
documents, including a prospectus, and/or any other appropriate disclosure
document as may be reasonably necessary in the opinion of both counsel for the
Company and counsel for the Representative and Holders, in order to comply with
the provisions of the Act, so as to permit a public offering and sale of their
respective Registrable Securities for nine (9) consecutive months (or such
longer period of time as permitted by the Act) by such Holders and any other
Holders of any of the Registrable Securities who notify the Company within ten
(10) days after being given notice from the Company of such request. A Demand
Registration shall not be counted as a Demand Registration hereunder until such
Demand Registration has been declared effective by the SEC and maintained
continuously effective for a period of at least nine months or such shorter
period when all Registrable Securities included therein have been sold in
accordance with such Demand Registration, provided that a Demand Registration
shall be counted as a Demand Registration hereunder if the Company ceases its
efforts in respect of such Demand Registration at the request of the majority
Holders making the demand for a reason other than a material and adverse change
in the business, assets, prospects or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole.
(b) The Company covenants and agrees to give written
notice of any registration request under this Section 7.3 by the majority of
the Holders to all other registered Holders of any of the Registrable
Securities within ten (10) days from the date of the receipt of any such
registration request.
(c) In addition to the registration rights under Section
7.2 and subsection (a) of this Section 7.3, at any time commencing one (1) year
after the Effective Date of the offering, and expiring four (4) years
thereafter, the Holders of a majority of the Registrable Securities shall have
the right, exercisable by written request to the Company, to have the Company
prepare and file, on one occasion, with the Commission a registration statement
or any other appropriate disclosure document so as to permit a public offering
and sale for nine (9) consecutive months (or such longer period of time as
permitted by the Act) by any such Holder of Registrable Securities; provided,
however, that the provisions of Section 7.4(b) hereof shall not apply to any
such registration request and registration and all costs incident
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thereto shall be at the expense of the Holder or Holders participating in the
offering pro-rata.
(d) Any written request by the Holders made pursuant to
this Section 7.3 shall:
(i) specify the number of Registrable Securities
which the Holders intend to offer and sell and the minimum
price at which the Holders intend to offer and sell such
securities;
(ii) state the intention of the Holders to offer
such securities for sale;
(iii) describe the intended method of distribution
of such securities; and
(iv) contain an undertaking on the part of the
Holders to provide all such information and materials
concerning the Holders and take all such action as may be
reasonably required to permit the Company to comply with all
applicable requirements of the Commission and to obtain
acceleration of the effective date of the registration
statement.
(e) In the event the Company receives from the Holders of
any Registrable Securities representing more than 50% of such securities at
that time outstanding, a request that the Company effect a registration on Form
S-3 with respect to the Registrable Securities and if Form S-3 is available for
such offering, the Company shall, as soon as practicable, effect such
registration as would permit or facilitate the sale and distribution of the
Registrable Securities as are specified in the request. All expenses incurred
in connection with a registration requested pursuant to this Section shall be
borne by the Company. Registrations effected pursuant to this Section 7.3(e)
shall not be counted as registrations pursuant to Section 7.3(a) and 7.3(c)
hereof.
7.4 Covenants of the Company With Respect to
Registration.
In connection with any registration under Section 7.2 or 7.3
hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a
registration statement within forty-five (45) days of receipt of any demand
pursuant to Section 7.3, and shall use its best efforts to have any such
registration statement declared effective at the earliest practicable time.
The Company will promptly notify each seller of such Registrable Securities and
confirm such advice in writing, (i) when such registration statement becomes
effective, (ii) when any post-effective
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amendment to such registration statement becomes effective and (iii) of any
request by the SEC for any amendment or supplement to such registration
statement or any prospectus relating thereto or for additional information.
The Company shall furnish to each seller of such Registrable
Securities such number of copies of such registration statement and of each
such amendment and supplement thereto (in each case including each preliminary
prospectus and summary prospectus) in conformity with the requirements of the
Act, and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities by such seller.
(b) The Company shall pay all costs (excluding transfer
taxes, if any, and fees and expenses of Holder(s)' counsel and the Holder's
pro-rata portion of the selling discount or commissions), fees and expenses in
connection with all registration statements filed pursuant to Sections 7.2 and
7.3(a) hereof including, without limitation, the Company's legal and accounting
fees, printing expenses, blue sky fees and expenses. The Holder(s) will pay all
costs, fees and expenses in connection with any registration statement filed
pursuant to Section 7.3(c). If the Company shall fail to comply with the
provisions of Section 7.3(a), the Company shall, in addition to any other
equitable or other relief available to the Holder(s), be liable for any or all
special and consequential damages sustained by the Holder(s) requesting
registration of their Registrable Securities.
(c) The Company shall prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be reasonably necessary to keep such
registration statement effective for at least nine months (or such longer
period as permitted by the Act), and to comply with the provisions of the Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller or sellers of Registrable Securities set forth in
such registration statement. If at any time the SEC should institute or
threaten to institute any proceedings for the purpose of issuing a stop order
suspending the effectiveness of any such registration statement, the Company
will promptly notify each seller of such Registrable Securities and will use
all reasonable efforts to prevent the issuance of any such stop order or to
obtain the withdrawal thereof as soon as possible. The Company will use its
good faith reasonable efforts and take all reasonably necessary action which
may be required in qualifying or registering the Registrable Securities
included in a registration statement for offering and sale under
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the securities or blue sky laws of such states as reasonably are required by
the Holder(s), provided that the Company shall not be obligated to execute or
file any general consent to service of process or to qualify as a foreign
corporation to do business under the laws of any such jurisdiction. The
Company shall use its good faith reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities of the United
States or any State thereof as may be reasonably necessary to enable the seller
or sellers thereof to consummate the disposition of such Registrable
Securities.
(d) The Company shall indemnify the Holder(s) of the
Registrable Securities to be sold pursuant to any registration statement and
each person, if any, who controls such Holders within the meaning of Section 15
of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such registration
statement but only to the same extent and with the same effect as the
provisions pursuant to which the Company has agreed to indemnify the
Representative as contained in the Underwriting Agreement.
(e) If requested by the Company prior to the filing of
any registration statement covering the Registrable Securities, each of the
Holder(s) of the Registrable Securities to be sold pursuant to a registration
statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from written
information furnished by such Holder, or their successors or assigns, for
specific inclusion in such registration statement to the same extent and with
the same effect as the provisions contained in the Underwriting Agreement
pursuant to which the Representative has agreed to indemnify the Company,
except that the maximum amount which may be recovered from each Holder pursuant
to this paragraph or otherwise shall be limited to the amount of net proceeds
received by the Holder from the sale of the Registrable Securities.
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(f) Nothing contained in this Agreement shall be
construed as requiring the Holder(s) to exercise their Warrants or Underlying
Warrants prior to the filing of any registration statement or the effectiveness
thereof.
(g) The Company shall not permit the inclusion of any
securities other than the Registrable Securities to be included in any
registration statement filed pursuant to Section 7.3 hereof without the prior
written consent of the Holders of the Registrable Securities representing a
majority of such securities.
(h) The Company shall furnish to each Holder
participating in the offering and to each underwriter, if any, a signed
counterpart, addressed to such Holder or underwriter, of (i) an opinion of
counsel to the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement), and (ii) a
"cold comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a letter
dated the date of the closing under the underwriting agreement) signed by the
independent public accountants who have issued a report on the Company's
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in underwritten
public offerings of securities.
(i) The Company shall deliver promptly to each Holder
participating in the offering requesting the correspondence and memoranda
described below and the managing underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD"). Such investigation shall
include access to books, records and properties and opportunities to discuss
the business of the Company with its officers and independent auditors, all to
such reasonable extent and at such reasonable times and as often as any such
Holder shall reasonably request.
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(j) With respect to a registration statement filed
pursuant to Section 7.3, the Company, if requested, shall enter into an
underwriting agreement with the managing underwriter, reasonably satisfactory
to the Company, selected for such underwriting by Holders holding a majority of
the Registrable Securities requested to be included in such underwriting. Such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter. The
Holders, if required by the Underwriter to be parties to any underwriting
agreement relating to an underwritten sale of their Registrable Securities,
may, at their option, require that any or all the representations, warranties
and covenants of the Company to or for the benefit of such underwriters shall
also be made to and for the benefit of such Holders. Such Holders shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters except as they may relate to such Holders and their
intended methods of distribution.
(k) Notwithstanding the provisions of paragraph 7.2 or
paragraph 7.3 of this Agreement, the Company shall not be required to effect or
cause the registration of Registrable Securities pursuant to paragraph 7.2 or
paragraph 7.3 hereof if, within thirty (30) days after its receipt of a request
to register such Registrable Securities (i) counsel for the Company delivers an
opinion to the Holders requesting registration of such Registrable Securities,
in form and substance satisfactory to counsel to such Holder(s), to the effect
that the entire number of Registrable Securities proposed to be sold by such
Holder(s) may otherwise be sold, in the manner proposed by such Holder(s),
without registration under the Securities Act, or (ii) the SEC shall have
issued a no-action position, in form and substance satisfactory to counsel for
the Holder(s) requesting registration of such Registrable Securities, to the
effect that the entire number of Registrable Securities proposed to be sold by
such Holder(s) may be sold by it, in the manner proposed by such Holder(s),
without registration under the Securities Act.
(l) After completion of the Public Offering, the Company
shall not, directly or indirectly, enter into any merger, business combination
or consolidation in which (a) the Company shall not be the surviving
corporation and (b) the stockholders of the Company are to receive, in whole or
in part, capital stock or other securities of the surviving corporation, unless
the surviving corporation shall, prior to such merger, business combination or
consolidation, agree in writing to assume the
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obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Securities" shall be deemed to include the
securities which the Holders would be entitled to receive in exchange for
Registrable Securities under any such merger, business combination or
consolidation, provided that to the extent such securities to be received are
convertible into shares of Common Stock of the issuer thereof, then any such
shares of Common Stock as are issued or issuable upon conversion of said
convertible securities shall also be included within the definition of
"Registrable Securities".
8. Adjustments to Exercise Price and Number of
Securities.
8.1 Adjustment for Dividends, Subdivisions, Combinations
or Reclassifications.
In case the Company shall (a) pay a dividend or make a
distribution in shares of its capital stock (whether shares of Common Stock or
of capital stock of any other class), (b) subdivide its outstanding shares of
Common Stock into a greater number of shares, (c) combine its outstanding
shares of Common Stock into a smaller number of shares, or (d) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Company; then, and in each such case, the per share Exercise Price and the
number of Warrant Securities in effect immediately prior to such action shall
be adjusted so that the Holder of this Warrant thereafter upon the exercise
hereof shall be entitled to receive the number and kind of shares of the
Company which such Holder would have owned immediately following such action
had this Warrant been exercised immediately prior thereto. An adjustment made
pursuant to this Section shall become effective immediately after the record
date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification. If, as a result of an adjustment made pursuant to this
Section, the Holder of this Warrant shall become entitled to receive shares of
two or more classes of capital stock of the Company, the Board of Directors of
the Company (whose determination shall be conclusive) shall determine the
allocation of the adjusted Exercise Price between or among shares of such class
of capital stock.
Immediately upon any adjustment of the Exercise Price pursuant
to this Section, the Company shall send written notice thereof to the Holder of
Warrant Certificates (by first class mail, postage prepaid), which notice shall
state the Exercise Price resulting from such adjustment, and any increase or
decrease in the number of Warrant Securities to be acquired upon exercise of
the Warrants, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
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8.2 Adjustment For Reorganization, Merger or
Consolidation.
In case of any reorganization of the Company or consolidation
of the Company with, or merger of the Company with, or merger of the Company
into, another corporation (other than a consolidation or merger which does not
result in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental Warrant agreement providing that the Holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger, by a holder of the
number of shares of Common Stock of the Company for which such warrant might
have been exercised immediately prior to such reorganization, consolidation,
merger, conveyance, sale or transfer. Such supplemental Warrant agreement
shall provide for adjustments which shall be identical to the adjustments
provided in Section 8 and such registration rights and other rights as provided
in this Agreement. The Company shall not effect any such consolidation,
merger, or similar transaction as contemplated by this paragraph, unless prior
to or simultaneously with the consummation thereof, the successor corporation
(if other than the Company) resulting from such consolidation or merger or the
corporation purchasing, receiving, or leasing such assets or other appropriate
corporation or entity shall assume, by written instrument executed and
delivered to the Holders, the obligation to deliver to the Holders, such shares
of stock, securities, or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase, and to perform the other
obligations of the Company under this Agreement. The above provision of this
Subsection shall similarly apply to successive consolidations or successively
whenever any event listed above shall occur.
8.3 Dividends and Other Distributions.
In the event that the Company shall at any time prior to the
exercise of all of the Warrants and/or Underlying Warrants distribute to its
stockholders any assets, property, rights, evidences of indebtedness,
securities (other than a distribution made as a cash dividend payable out of
earnings or out of any earned surplus legally available for dividends under the
laws of the jurisdictions of incorporation of the Company), whether issued by
the Company or by another, the Holders of the unexercised Warrants shall
thereafter be entitled, in addition to
15
the shares of Common Stock or other securities and property receivable upon the
exercise thereof, to receive, upon the exercise of such Warrants, the same
property, assets, rights, evidences of indebtedness, securities or any other
thing of value that they would have been entitled to receive at the time of
such distribution as if the Warrants had been exercised immediately prior to
such distribution. At the time of any such distribution, the Company shall make
appropriate reserves to ensure the timely performance of the provisions of this
subsection or an adjustment to the Exercise Price, which shall be effective as
of the day following the record date for such distribution.
8.4 Adjustment in Number of Securities.
Upon each adjustment of the Exercise Price pursuant to the
provisions of this Section 8, the number of securities issuable upon the
exercise of each Warrant and/or Underlying Warrant shall be adjusted to the
nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of securities
issuable upon exercise of the Warrants and/or the Underlying Warrants
immediately prior to such adjustment and dividing the product so obtained by
the adjusted Exercise Price.
8.5 No Adjustment of Exercise Price in Certain Cases.
No adjustment of the Exercise Price shall be made if the
amount of said adjustment shall be less than 5 cents ($.05) per Share,
provided, however, that 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
of and together with the next subsequent adjustment which, together with any
adjustment so carried forward, shall amount to at least 5 cents ($.05) per
Share.
8.6 Accountant's Certificate of Adjustment.
In each case of an adjustment or readjustment of the Exercise
Price or the number of any securities issuable upon exercise of the Warrants
and/or Underlying Warrants, the Company, at its expense, shall cause
independent certified public accountants of recognized standing selected by the
Company (who may be the independent certified public accountants then auditing
the books of the Company) to compute such adjustment or readjustment in
accordance herewith and prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first class mail, postage
prepaid, to any Holder of the Warrants and/or Underlying Warrants at the
Holder's address as shown on the Company's books. The certificate shall
16
set forth such adjustment or readjustment, showing in detail the facts upon
which such adjustment or readjustment is based including, but not limited to, a
statement of (i) the Exercise Price at the time in effect, and (ii) the number
of additional securities and the type and amount, if any, of other property
which at the time would be received upon exercise of the Warrants and/or
Underlying Warrants.
8.7 Adjustment of Underlying Warrant Exercise Price.
With respect to any of the Underlying Warrants whether or not
the Underlying Warrants have been exercised (or are exercisable) and whether or
not the Underlying Warrants are issued and outstanding, the Underlying Warrant
exercise price and the number of shares of Common Stock underlying such
Underlying Warrants shall be automatically adjusted in accordance with the
Warrant Agreement between the Company and the Company's transfer agent, upon
occurrence of any of the events relating to adjustments described therein.
Thereafter, the Underlying Warrants shall be exercisable at such adjusted
Underlying Warrant exercise price for such adjusted number of underlying shares
of Common Stock or other securities, properties or rights.
9. Exchange and Replacement of Warrant Certificates.
Each Warrant Certificate is exchangeable without expense, upon
the surrender thereof by the registered Holder at the principal executive
office of the Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of
securities in such denominations as shall be designated by the Holder thereof
at the time of such surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrants, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interest.
The Company shall not be required to issue certificates
representing fractions of shares of Common Stock upon the exercise of the
Warrants and/or Underlying Warrants, nor shall it be required to issue script
or pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests may be eliminated, at the Company's option, by
rounding
17
any fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights, or in lieu thereof paying cash equal to such
fractional interest multiplied by the current value of a share of Common Stock.
11. Reservation and Listing.
The Company shall at all times reserve and keep available out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrants and the Underlying Warrants, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that,
upon exercise of the Warrants and/or the Underlying Warrants, and payment of
the Exercise Price therefor, all shares of Common Stock and other securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Warrants and/or Underlying Warrants shall be outstanding, the
Company shall use its best efforts to cause all shares of Common Stock issuable
upon the exercise of the Warrants and the Underlying Warrants to be listed and
quoted (subject to official notice of issuance) on all securities Exchanges and
Systems on which the Common Stock and/or the Public Warrants may then be listed
and/or quoted, including Nasdaq.
12. Notices to Warrant Holders.
Nothing contained in this Agreement shall be construed as
conferring upon the Holders of the Warrants and/or Underlying Warrants the
right to vote or to consent or to receive notice as a stockholder in respect of
any meetings of stockholders for the election of directors or any other matter,
or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrants and/or Underlying
Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the
holders of its shares of Common Stock for the purpose of
entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
(b) the Company shall offer to all the holders of
its Common Stock any additional shares of capital stock of the
Company or securities convertible into or exchangeable for
18
shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation or
merger) or a sale of all or substantially all of its property,
assets and business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date of the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notices shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to give such notice or any defect therein shall not affect the
validity of any action taken in connection with the declaration or payment of
any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
13. Underlying Warrants.
The form of the certificate representing the Underlying
Warrants (and the form of election to purchase shares of Common Stock upon the
exercise of the Underlying Warrants and the form of assignment printed on the
reverse thereof) shall be substantially as set forth in the exhibits to the
Warrant Agreement. Subject to the terms of this Agreement, one (1) Underlying
Warrant shall evidence the right to initially purchase one (1) fully-paid and
non-assessable share of Common Stock at an initial purchase price of $8.25
during the five (5) year period commencing on the Effective Date of the
Registration Statement, at which time the Underlying Warrants, unless the
exercise period has been extended, shall expire. The exercise price of the
Underlying Warrants and the number of shares of Common Stock issuable upon the
exercise of the Underlying Warrants are subject to adjustment, whether or not
the Warrants have been exercised and the Underlying Warrants have been issued,
in the manner and upon the occurrence of the events set forth in the Warrant
Agreement, which is hereby incorporated herein by reference and made a part
hereof as if set forth in its entirety herein. Subject to the provisions of
this Agreement and upon issuance of the Underlying Warrants, each registered
holder of such Underlying Warrant shall have the right to purchase from the
Company (and the Company shall issue to such registered holders)
19
up to the number of fully-paid and non-assessable shares of Common Stock
(subject to adjustment as provided in the Warrant Agreement) set forth in such
Warrant Certificate, free and clear of all preemptive rights of stockholders,
provided that such registered Holder complies with the terms governing exercise
of the Underlying Warrant set forth in the Warrant Agreement, and pays the
applicable exercise price, determined in accordance with the terms of the
Warrant Agreement. Upon exercise of the Underlying Warrants, the Company shall
forthwith issue to the registered Holder of any such Underlying Warrant in his
name or in such name as may be directed by him, certificates for the number of
shares of Common Stock so purchased. Except as otherwise provided herein and
in this Agreement, the Underlying Warrants shall be governed in all respects by
the terms of the Warrant Agreement. The Underlying Warrants shall be
transferrable in the manner provided in the Warrant Agreement, and upon any
such transfer, a new Underlying Warrant certificate shall be issued promptly to
the transferee. The Company covenants to send to each Holder, irrespective of
whether or not the Warrants have been exercised, any and all notices required
by the Warrant Agreement to be sent to holders of Underlying Warrants.
14. Notices.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
personally delivered, or mailed by registered or certified mail, return receipt
requested:
(a) If to the registered Holder of any of the
Registrable Securities, to the address of such Holder as shown
on the books of the Company; or
(b) If to the Company, to the address set forth
below or to such other address as the Company may designate by
notice to the Holders.
Xx. Xxxxxx X. Xxxxxx, Chairman
DIDAX INC.
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxx & Xxxxxxx, P.A.
NationsBank Tower, Suite 3500
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
20
15. Entire Agreement: Modification.
This Agreement (and the Underwriting Agreement and Warrant
Agreement to the extent applicable) contain the entire understanding between
the parties hereto with respect to the subject matter hereof, and the terms and
provisions of this Agreement may not be modified, waived or amended except in a
writing executed by the Company and the Holders of at least a majority of
Registrable Securities (based on underlying numbers of shares of Common Stock).
Notice of any modification, waiver or amendment shall be promptly provided to
any Holder not consenting to such modification, waiver or amendment.
16. Successors.
All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
17. Termination.
This Agreement shall terminate at the close of business on
_________, 2004. Notwithstanding the foregoing, the indemnification provisions
of Section 7 shall survive such termination.
18. Governing Law; Submission to Jurisdiction.
This Agreement and each Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Florida
and for all purposes shall be construed in accordance with the laws of said
State without giving effect to the rules of said State governing the conflicts
of laws. The Company, the Representative and the Holders hereby agree that any
action, proceeding or claim arising out of, or relating in any way to, this
Agreement shall be brought and enforced in a federal or state court of
competent jurisdiction with venue only in the Fifteenth Judicial Circuit Court
in and for Palm Beach County, Florida or the United States District Court for
the Southern District of Florida, West Palm Beach Division, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The
Company, the Representative and the Holders hereby irrevocably waive any
objection to such exclusive jurisdiction or inconvenient forum. Any such
process or summons to be served upon any of the Company, the Representative and
the Holders (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 14 hereof. Such mailing shall be deemed
21
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim.
19. Severability.
If any provision of this Agreement shall be held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any
other provision of this Agreement.
20. Captions.
The caption headings of the Sections of this Agreement are for
convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive
effect.
21. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and the Representative and any
other registered Holder(s) of the Warrant Certificates or Registrable
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Representative and any other Holder(s) of the Warrant Certificates or
Registrable Securities.
22. Counterparts.
This Agreement 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 HEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
DIDAX INC.
By:
------------------------------
Xx. Xxxxxx X. Xxxxxx, Chairman
-------------------------------------
Attest:
--------------------------
Xxxx X. Xxxxxxx, Secretary
XXXXXX XXXXX SECURITIES, INC.
By:
------------------------------
Xxxxxx Xxxx, President
22
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M, EASTERN TIME ON ___________, 2002
NO. W-
-----
Common Stock Warrant
-------- --------
Representative Representative
Warrants Warrants
or
Underlying
-------- Warrants
23
This Warrant Certificate certifies that ________________, or
registered assigns, is the registered holder of ____________Common Stock
Representative Warrants and/or________ Warrant Representative Warrants and/or
__________ Underlying Warrants of DIDAX INC. (the "Company"). Each Common
Stock Representative Warrant permits the Holder hereof to purchase initially,
at any time from ________, 1997 ("Purchase Date") until 5:30 p.m. Eastern Time
on __________, 2002 ("Expiration Date"), one (1) share of the Company's Common
Stock at the initial exercise price, subject to adjustment in certain events
(the "Exercise Price"), of $8.25 per share (165% of the public offering price).
Each Warrant Representative Warrant permits the Holder hereof to purchase
initially, at any time from the Purchase Date until five (5) years from the
Purchase Date, one (1) Underlying Warrant at the Exercise Price of $.20625 per
Underlying Warrant. Each Underlying Warrant permits the Holder thereof to
purchase, at any time from the Purchase Date until five (5) years from the
Purchase Date, one (1) share of the Company's Common Stock at the Exercise
Price of $8.25 per share.
Any exercise of Common Stock Representative Warrants and/or
Warrant Representative Warrants and/or Underlying Warrants shall be effected by
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the Representative's Warrant Agreement dated as of __________, 1997,
between the Company and Xxxxxx Xxxxx Securities, Inc. (the "Representative's
Warrant Agreement"). Payment of the Exercise Price shall be made by certified
check or official bank check in New York Clearing House funds payable to the
order of the Company in the event there is no cashless exercise pursuant to
Section 3.1(ii) of the Representative's Warrant Agreement. The Common Stock
Representative Warrants, the Warrant Representative Warrants, and the
Underlying Warrants are collectively referred to as "Warrants".
No Warrant may be exercised after 5:30 p.m., Eastern Time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Representative's
Warrant Agreement, which Representative's Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation or rights, obligations,
duties and immunities thereunder of the Company and the holders
24
(the words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants.
The Representative's Warrant Agreement provides that upon the
occurrence of certain events, the Exercise Price and the type and/or number of
the Company's securities issuable thereupon may, subject to certain conditions,
be adjusted. In such event, the Company will, at the request of the holder,
issue a new Warrant Certificate evidencing the adjustment in the Exercise Price
and the number and/or type of securities issuable upon the exercise of the
Warrants; provided, however, that the failure of the Company to issue such new
Warrant Certificates shall not in any way change, alter, or otherwise impair,
the rights of the holder as set forth in the Representative's Warrant
Agreement.
Upon due presentment for registration or transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Representative's Warrant Agreement, without any charge except
for any tax or other governmental charge imposed in connection with such
transfer.
Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof
as the absolute owner(s) of this Warrant certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and
for all other purposes, and the Company shall not be affected by any notice to
the contrary.
All terms used in this Warrant Certificate which are defined
in the Representative's Warrant Agreement shall have the meanings assigned to
them in the Representative's Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated as of , 1997
----------
DIDAX INC.
By:
-------------------------------
Xx. Xxxxxx X. Xxxxxx, Chairman
Attest:
-------------------------------
Xxxx X. Xxxxxxx, Secretary
25
EXHIBIT "A"
FORM OF SUBSCRIPTION (CASH EXERCISE)
(To be signed only upon exercise of Warrant)
TO: DIDAX INC.
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
The undersigned, the Holder of Warrant Certificate number ___ (the
"Warrant"), representing _________ Common Stock Representative Warrants and/or
__________ Warrant Representative Warrants and/or ___________ Underlying
Warrants of DIDAX INC. (the "Company"), which Warrant Certificate is being
delivered
26
herewith, hereby irrevocably elects to exercise the purchase right provided by
the Warrant Certificate for, and to purchase thereunder, ___________ Shares
and/or ___________ Underlying Warrants of the Company, and herewith makes
payment of $__________ therefor, and requests that the certificates for such
securities be issued in the name of, and delivered to, ________________________
__________________________, whose address is __________________________________
_______________________________________________________________________________
________ _________________________, all in accordance with the Representative's
Warrant Agreement and the Warrant Certificate.
Dated:
-----------------------
---------------------------------------
(Signature must conform in all
respects to name of Holder as specified
on the face of the Warrant Certificate)
---------------------------------------
---------------------------------------
(Address)
EXHIBIT "B"
FORM OF SUBSCRIPTION (CASHLESS EXERCISE)
TO: DIDAX INC.
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
27
The undersigned, the Holder of Warrant Certificate number ___(the
"Warrant"), representing _________ Common Stock Representative Warrants and/or
__________ Underlying Warrants DIDAX INC. (the "Company"), which Warrant is
being delivered herewith, hereby irrevocably elects the cashless exercise of
the purchase right provided by the Representative's Warrant Agreement and the
Warrant Certificate for, and to purchase thereunder, Shares of the Company in
accordance with the formula provided at Section three (3) of the
Representative's Warrant Agreement. The undersigned requests that the
certificates for such Shares be issued in the name of, and delivered to,
________________________________________________________________________________
_________________, whose address is,___________________________________________
______________________________________________________________________, all in
accordance with the Warrant Certificate.
Dated:
-----------------------
--------------------------------
(Signature must conform
in all respects to name of Holder
as specified on the face of the
Warrant Certificate)
-------------------------------
-------------------------------
(Address)
(FORM OF ASSIGNMENT)
(To be exercised by the registered holder if such
holder desires to transfer the Warrant Certificate.)
28
FOR VALUE RECEIVED _______________________________________________ hereby
sells, assigns and transfers unto
(Print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, and full power of substitution.
Dated: Signature:
--------------------------------------------------------------------------
(Signature must conform in all respects to name
of holder as specified on the fact of the
Warrant Certificate)
-----------------------------------------------
(Insert Social Security or Other Identifying
Number of Assignee)
