<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
To Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): August 18, 1998
U.S. DIGITAL COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
Nevada
(State or Other Jurisdiction of Incorporation)
0-21225 88-0101953
(Commission File Number) (I.R.S. Employer Identification No.)
2 Wisconsin Circle, Chevy Chase, Maryland 20815
(Address of Principal Executive Offices, Including Zip Code)
(301) 961-1540
(Registrant's Telephone Number, Including Area Code)
<PAGE>
ITEM 5. OTHER EVENTS.
The following report contains forward looking statements which involve
uncertainties, including financial projections for the fiscal year ending
December 31, 1998, and the filing of periodic reports. The words "anticipates,"
"will," "intends," "projected" "expects" and similar expressions are intended to
identify forward looking statements. These forward looking statements involve
uncertainties, and the Company's actual results could differ materially from
those anticipated as a result of a variety of factors.
On June 1, 1998, the Registrant engaged Arthur Andersen LLP (the
"Independent Auditor") to perform an audit of its consolidated balance sheet for
the fiscal year ended December 31, 1997. Registrant and Independent Auditor are
in the process of completing the audit. Shortly after the audit has been
completed, the Registrant intends to file its Form 10-K for the fiscal year
ended December 31, 1997, and Forms 10-Q for the quarters ended March 31 and June
30, 1998.
It has come to Registrant's attention that Heysek Research Corp. has issued
a report in which it purports to project earnings for Registrant in 1998, 1999,
and 2000. It is Registrant's policy not to project earnings. Registrant accepts
no responsibility for the report or the projections given by Heysek Research
Corp. In fact, based upon a review of its unaudited financial statements,
Registrant expects to report a net loss from its operations for its fiscal year
ended December 31, 1997. Moreover, Registrant expects to report net losses from
its operations for the quarters ended March 31 and June 30, 1998.
On May 6, 1998 Registrant announced that it signed a letter of intent to
acquire EuroTelecom Communications, Inc. ("EUTC"). In that announcement,
Registrant referred to unaudited earnings of EUTC's "family" of companies. The
"family" of companies include companies that do business with EUTC, and which
EUTC at that time planned to acquire as part of the transaction in which it
would be acquired by or merged with Registrant. Registrant and EUTC have
mutually rescinded their letter of intent, and have agreed to renegotiate and
restructure the proposed acquisition. Registrant's due diligence is
continuing. However, Registrant has not yet received detailed financial and
other information concerning EUTC and other companies referred to in the May 6,
1998 announcement. Registrant's Chief Operating Officer, Edward Kopf, was
quoted on August 18, 1998 in an announcement by Wall Street West Communications,
as to the timing and probability of Registrant acquiring EUTC. All such quotes
should be understood in the context of the statements made herein. Registrant
and EUTC have not agreed upon specific terms for an acquisition transaction, and
do not have any binding contract. There can be no assurance that any agreement
between Registrant and EUTC will ever be entered into or concluded. Any
suggestion to the contrary in the announcement by Wall Street West
Communications is incorrect.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
4.1 Form of Specimen Certificate for Series A Preferred Stock.
4.2 Certificate of Designations, Preferences and Privileges of the
Series A Preferred Stock of the Registrant.
4.3 Form of Warrant to Purchase Common Stock of the Registrant.
ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATIONS S.
The Registrant has recently completed an offering of its Series A Preferred
Stock pursuant to Regulation S of the Securities Act of 1933, as amended. From
December 16, 1996 to July 6, 1998, the Registrant sold an aggregate of 4,338,832
shares of Series A Preferred Stock and warrants to purchase an aggregate of
2,169,416 shares of Common Stock for a total offering price of $6,508,248, less
approximately $758,520 in placement agent fees. The placement agent for the
sales of the Series A Preferred Stock was WINCAP, LTD. All sales of the Series A
Preferred Stock were sold to qualified investors outside the United States. The
following table sets forth the date of each sale, the number of shares of Series
A Preferred Stock sold and the number of warrants to purchase shares of Common
Stock sold.
<TABLE>
<CAPTION>
WARRANTS TO
SHARES OF SERIES PURCHASE TOTAL
A PREFERRED COMMON STOCK CONSIDERATION
DATE OF SALE STOCK (#) (#) ($)
- --------------------- ---------------- ------------ -------------
<S> <C> <C> <C>
January 6, 1997 12,500 6,250 18,750
January 6, 1997 20,000 10,000 30,000
January 7, 1997 135,000 67,500 202,500
January 8, 1997 70,000 35,000 105,000
January 8, 1997 200,000 100,000 300,000
January 9, 1997 1,036,000 518,000 1,554,000
January 14, 1997 100,000 50,000 150,000
January 17, 1997 66,666 33,333 99,999
January 23, 1997 66,666 33,333 99,999
January 31, 1997 70,000 35,000 105,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
WARRANTS TO
SHARES OF SERIES PURCHASE TOTAL
A PREFERRED COMMON STOCK CONSIDERATION
DATE OF SALE STOCK (#) (#) ($)
- --------------------- ---------------- ------------ -------------
<S> <C> <C> <C>
February 1, 1997 70,000 35,000 105,000
February 19, 1997 185,000 92,500 277,500
September 23, 1997 30,000 15,000 45,000
September 24, 1997 10,000 5,000 15,000
September 24, 1997 20,000 10,000 30,000
September 30, 1997 143,400 71,700 215,100
October 3, 1997 127,000 63,500 190,500
October 6, 1997 60,000 30,000 90,000
November 3, 1997 60,000 30,000 90,000
December 23, 1997 400,000 200,000 600,000
December 23, 1997 80,000 40,000 120,000
December 23, 1997 40,000 20,000 60,000
February 24, 1998 20,000 10,000 30,000
May 18, 1998 400,000 200,000 600,000
June 1, 1998 300,000 150,000 450,000
June 3, 1998 300,000 150,000 450,000
June 15, 1998 140,000 70,000 210,000
July 1, 1998 44,000 22,000 66,000
July 6, 1998 132,600 66,300 198,900
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, hereunto duly authorized.
U.S. DIGITAL COMMUNICATIONS, INC.
Date: August 20, 1998
By: /s/ Robert J. Wussler
----------------------------------
Name: Robert J. Wussler
Title: Chairman
<PAGE>
EXHIBIT 4.1
- -------------- ------------
| NUMBER | | SHARES |
- -------------- ------------
|| SPECIMEN || || ||
- -------------- ------------
---------------------------------------------------------------------------
| INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA |
| |
| U.S. DIGITAL COMMUNICATIONS, INC. |
---------------------------------------------------------------------------
--------------------
| CUSIP 90332A 206 |
--------------------
This Certifies that is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE SERIES A PREFERRED STOCK
OF THE PAR VALUE OF $0.01 EACH OF
U.S. DIGITAL COMMUNICATIONS, INC.
transferable only on the books of the Corporation by the holder hereof in person
or by duly authorized Attorney upon surrender of this Certificate properly
endorsed.
A statement, in full, of all the designations, preferences, qualifications,
limitations and special or relative rights of the shares of each class
authorized to be issued, will be furnished by the Corporation to any shareholder
upon request and without charge.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed.
Date
-------------------------------
- ------------------------------------ ------------------------------------
SECRETARY PRESIDENT
<PAGE>
EXHIBIT 4.2
Certificate of Designations, Preferences and
Privileges of the Series A Preferred Stock
of
Viscorp
___________________________
Pursuant to Section 78.195 of the NRS
of the State of Nevada
___________________________
1. Dividends.
---------
The holders of the Series A Preferred Stock shall be entitled to receive,
when and as declared by the Board of Directors out of funds legally available
for such purpose, cash dividends at the rate of 8% per annum of the Stated Value
as adjusted herein (computed on the basis of a 360-day year, 30-day month). The
original Stated Value shall be $1.50 per Share. Dividends shall be payable on
Series A Preferred Stock on the last day of each June, September, December, and
March and each such day is herein called a "Dividend Payment Date" cumulative
from the date of issuance. For purposes of this Certificate, the date on which
the Corporation shall initially issue any Series A Preferred Share shall be
deemed to be the "date of issuance" of such Share regardless of how many times
transfer of such Share shall be made on stock records maintained by or for the
Corporation and regardless of the number of certificates which may be issued to
evidence such Share (whether by reason of transfers of such Share or for any
other reason). On each Dividend Payment Date all dividends which shall have
accrued on each share of Series A Preferred Stock then outstanding during the
calendar quarter ending upon such Dividend Payment Date shall be deemed to
become "due" for all purposes of this Section regardless of whether the
Corporation shall be able or legally permitted to pay such dividend on such
Dividend Payment Date. If any dividend on any Series A Preferred Stock shall for
any reason not be paid at the time such dividend shall become due, then such
dividend in arrears shall be paid as soon as payments of same shall be
permissible under the provisions of the NRS of the State of Nevada. Until such
dividend in arrears is paid, dividends shall continue to accrue on each Series A
Preferred Stock but the percentage rate expressed herein shall be applied to the
Stated Value thereof plus all dividends in arrears thereon (including
<PAGE>
dividends computed pursuant to this sentence).
a. Distribution of Partial Dividend Payments.
-----------------------------------------
If at any time the Corporation shall pay less than the total amount of
dividends due on outstanding Cumulative Preferred Stock at the time of such
payment, such payment shall be distributed among the holders of Series A
Preferred Stock so that an equal amount shall be paid with respect to each
outstanding share of Cumulative Preferred Stock.
b. Restrictions on Dividends, Distributions, Redemptions.
-----------------------------------------------------
If at any time there shall be any accrued and unpaid dividends on any
Series A Preferred Stock then outstanding, (a) no dividends whatsoever of any
kind may be declared or paid upon, nor shall any distribution of any kind be
made upon any share of any class of stock in the Corporation other than the
Series A Preferred Stock, and (b) no shares of any class of stock of the
Corporation shall be redeemed by the Corporation or purchased or otherwise
acquired by the Corporation or any affiliate thereof, other than redemptions of
8% Preferred Stock.
2. Liquidation Preference.
----------------------
In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary (a "Liquidation"), the holders of
Series A Preferred Stock shall be entitled to receive, prior and in preference
to any distribution of any of the assets of the Corporation to the holders of
Common Stock by reason of their ownership thereof, an amount per share equal to
the sum of (i) $1.50 for each outstanding share of Series A Preferred Stock (the
"Original Series A Issue Price") and (ii) an amount, if any equal to all unpaid
dividends on such share. If upon the occurrence of such event, the assets and
funds thus distributed among the holders of the Series A Preferred Stock shall
be insufficient to permit the payment to such holders of the full aforesaid
preferential amount, then, the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of the Series A Preferred Stock in proportion to the number of shares
then held by each such holder.
a. Upon the completion of the distribution required by subsection 2
above, and any other distribution that may be
2
<PAGE>
required with respect to any series of Preferred Stock that may from time to
time come into existence, if assets remain in the Corporation, the remaining
assets and funds of the Corporation available for distribution shall be
distributed among the holders of Series A Preferred Stock and Common Stock pro
rata based on the number of shares of Common Stock held by each (on an as-
converted basis for the Series A Preferred Stock, based on the Conversion Price
(as defined below) determined in accordance with the formula set forth in
subsection 5(d)(i) below).
3. Redemption. The Series A Preferred Stock is not redeemable, except
----------
upon liquidation of the Corporation
4. Voting Rights. The Series A Preferred Stock shall be non-voting
-------------
except as provided herein.
5. Conversion. The holders of Series A Preferred Stock shall have the
----------
right to convert into the Corporation's Common Stock as to 25% of all of the
holder's Shares of the Series A Preferred Stock 90 days following the issuance
of such Shares and another 25% upon the expiration of another 90 days. The
Shares shall also be converted as follows (the "Conversion Rights"):
a. Right to Convert upon an Acquisition.
------------------------------------
(i) The holders of at least 66 2/3% of the outstanding shares of
Series A Preferred Stock shall have the right, exercisable immediately prior to
an Acquisition (as defined below) in which the holders of Series A Preferred
Stock would receive an amount per share less than or equal to $1.50 (as adjusted
for stock dividends, stock splits or recapitalizations of the Series A Preferred
Stock after the Purchase Date (as defined below) for each share of Series A
Preferred Stock held by them, to (x) convert each share of Series A Preferred
Stock into shares of Common Stock as is determined by dividing the Original
Series A Issue Price by the conversion Price determined in accordance with the
formula set forth in subsection 5(d)(i) below, or (y) deem such Acquisition to
be a Liquidation in accordance with Section 2. The election by the holders of
at least 66 2/3% of the outstanding shares of Series A Preferred Stock in
accordance with this subsection 5(a)(i) shall be given within 10 days of the
delivery of notice of an impending Acquisition by the Corporation in accordance
with subsection 5(a)(iv) below and such election shall be binding on all holders
of Series A Preferred Stock. In the event that, after notice, the holders of
Series A Preferred Stock fail to exercise their
3
<PAGE>
election right, the Acquisition shall be deemed to be a Liquidation in
accordance with Section 2.
(ii) For purposes of this Section 4(a), an "Acquisition" shall
include (A) any acquisition of the Corporation by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation), or (B) the sale of all or
substantially all of the assets of the Corporation, unless, in the case of
either subparagraphs (A) or (B) the Corporation's stockholders of record as
constituted immediately prior to such acquisition or sale will, immediately
after such acquisition or sale (by virtue of securities issued as consideration
for the Corporation's acquisition or sale or otherwise) hold at least 50% of the
voting power of the surviving or acquiring entity (herein referred to as a
"Continuity of Interest Acquisition").
(iii) If the consideration received by the Corporation or its
stockholders, as the case may be, in connection with an Acquisition is other
than cash, its value will be deemed its fair market value as mutually determined
by the Corporation and the holders of at least 66 2/3% of the outstanding shares
of Series A Preferred Stock. Any securities shall be valued as follows:
(A) If traded on a securities exchange or through the NASDAQ
National Market, the value shall be deemed to be the average of the closing
prices of the securities on such exchange over the 30-day period ending three
days prior to the closing of the Acquisition;
(B) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever is
applicable) over the 30-day period ending three days prior to the closing of the
Acquisition; or
(C) If there is no active public market, the value shall be the
fair market value thereof, as mutually determined by the Corporation and the
holders of at least 66 2/3% of the voting power of all then outstanding shares
of Series A Preferred Stock.
(iv) The method of valuation of securities subject to investment
letter or other restrictions on free marketability (other than restrictions
arising solely by virtue of a
4
<PAGE>
stockholder's status as an affiliate or further affiliate) shall be to make an
appropriate discount from the market value determined as above in (iii)(A), (B)
or (C) to reflect the approximate fair market value thereof, as mutually
determined by the Corporation and the holders of at least 66 2/3% of the voting
power of all then outstanding shares of Series A Preferred Stock.
(v) In the event the requirements of this subsection 5(a) are not
complied with, the Corporation shall forthwith either:
(A) Cause the closing of the Acquisition to be postponed until
such time as such requirements have been complied with; or
(B) Cancel such Acquisition, in which even the rights,
preferences, privileges and restrictions of the holders of Series A Preferred
Stock shall revert to and be the same as such rights, preferences, privileges
and restrictions existing immediately prior to the date of the first notice
referred to in subsection 4(a)(vi) below.
(vi) The Corporation shall give each holder of record of Series A
Preferred Stock written notice of an impending Acquisition not later than 20
days prior to the stockholders' meeting called to approve the same, or 20 days
prior to the closing of such Acquisition which ever is earlier, and shall also
notify such holders in writing of the final approval thereof. The first of such
notices shall describe the material terms and conditions of the impending
Acquisition and the provisions of this subsection 4(a), and the Corporation
shall thereafter give such holders prompt notice of any material changes. The
Acquisition shall in no event take place sooner than 20 days after the
Corporation has given the first notice provided for herein or sooner than 10
days after the Corporation has given notice of any material changes provided for
herein; provided, that such holders may be shortened upon the written consent of
the holders of Series A Preferred Stock that represent at least 66 2/3% of the
voting power of all then outstanding shares of Series A Preferred Stock.
b. Automatic Conversion. Each share of Series A Preferred Stock shall
--------------------
automatically be converted into shares of Common Stock immediately upon the
earlier of:
(i) The consummation of the Corporation's sale of
5
<PAGE>
its Common Stock in a firm commitment underwritten public offering pursuant to a
registration statement on Form S-1 (or the equivalent form for small business
corporations so long as the Corporation is entitled to use such form) under the
Securities Act of 1933, as amended (the "Act"), the public offering price of
which is not less than two times the Conversion Price (as defined below) of the
Series A Preferred Stock in effect immediately prior to consummation of such
public offering and which results in gross proceeds to the Corporation of
greater than $10,000,000. For purposes of this subsection 5(b)(i), the
Conversion Price for purposes of converting the Series A Preferred Stock into
Common Stock shall be determined in accordance with the formula set forth in
subsection 5(d)(i) below.
(ii) An Acquisition, if in connection with such Acquisition, the
holders of Series A Preferred Stock receive an amount per share greater than
$1.50 (as adjusted for stock dividends, stock splits or recapitalizations of the
Series A Preferred Stock after the Purchase Date). For purposes of this
subsection 4(b)(ii), the Conversion Price shall be determined in accordance with
the formula set forth in subsection 4(d)(i) below.
c. Mechanics of Conversion. Before any holder of Series A Preferred
-----------------------
Stock shall be entitled to convert the shares into shares of common Stock, such
holder shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Corporation or of any transfer agent for the Series A
Preferred Stock, and shall (except where conversion is automatic, as in the case
of conversion pursuant to subsections 4(a)(i) or 4(b)(i) through (ii) hereof)
give written notice to the Corporation at its principal corporate office, of the
election to convert the same and shall state therein the name or names in which
the certificate or certificates for shares of names in which the certificate or
certificates for shares of Common Stock are to be issued. The Corporation
shall, as soon as practicable thereafter, issue and deliver at such office to
such holder of Series A Preferred Stock, or to the nominee or nominees of such
holder, a certificate or certificates for the number of shares of Common Stock
to which such holder shall be entitled as aforesaid. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Series A Preferred Stock to be converted, or,
in the case of automatic conversion as in the case of subsections 5(a)(i) or
5(b)(i) through (iii) hereof, as of the date or event specified herein as of
which conversion is to be
6
<PAGE>
effective, and the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock as of such date. If the
conversion is in connection with an underwritten offering of securities
registered pursuant to the Act or in connection with an acquisition pursuant to
subsection 5(a)(i) hereof, the conversion shall be conditioned upon the closing
with the underwriters of the sale of securities pursuant to such offering or the
consummation of the Acquisition, as the case may be, in which event the
person(s) entitled to receive the Common Stock upon conversion of the Series A
Preferred Stock shall not be deemed to have converted such Series A Preferred
Stock until immediately prior to the closing of such sale of securities or the
consummation of such Acquisition.
d. Conversion Price Adjustments of Series A Preferred Stock. The
--------------------------------------------------------
initial conversion price per share for shares of Series A Preferred Stock (the
"Conversion Price") shall be the Original Series A Issue Price; provided, that,
the Conversion Price per share for shares of Series A Preferred Stock shall be
subject to adjustment after the date upon which any shares of Series A Preferred
Stock were firsts issued (the "Purchase Date") as follows:
(i) In case of any reclassification, capital reorganization or other
change of outstanding shares of the Corporation's Common Stock, or in case of
any consolidation or merger of the Corporation with or into another corporation
(other than a consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), or, in
case of any sale or conveyance of the property of the Corporation as, or
substantially as, an entirety (other than a sale/leaseback, mortgage or other
financing transaction), the Corporation shall cause effective provision to be
made so that the holders of Series A Preferred Stock shall have the right
thereafter, to convert the kind and number of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
capital reorganization or other change, consolidation, merger, sale or
conveyance by the holders of the number of shares of Common Stock that might
have been purchase upon conversion of the Series A Preferred Stock immediately
prior to such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. Any such provision shall include
provision for adjustments that shall be as nearly
7
<PAGE>
equivalent as may be practicable to the adjustments provided for in this
5(d)(i). The foregoing provisions shall similarly apply to successive
reclassifications, capital reorganizations and other changes of outstanding
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances.
(ii) The Corporation shall not be obligated to issue any replacement
Preferred Stock Certificate irrespective of any adjustments or changes in the
Stated Conversion Price or the number of shares of Common Stock purchasable upon
conversion of the Series A Preferred Stock. All Preferred Stock Certificates
theretofore and thereafter issued shall, unless the Corporation shall exercise
its option to issue a new Preferred Stock Certificate, continue to express the
Stated Conversion Price per share, the number of share purchasable thereunder as
the Stated Conversion Price per share, and the number of shares purchasable was
expressed in the Preferred Stock Certificate when it was originally issued.
(iii) After each adjustment of the Conversion Price pursuant to this
Section 5(c), the Corporation will promptly obtain an opinion of independent
certified public accountants selected by the Corporation setting forth: (i) the
Conversion Price as so adjusted, (ii) the number of shares of Common Stock
obtainable upon conversion of the Preferred Stock after such adjustment, and
(iii) a brief statement of the facts accounting for such adjustment. The
Corporation will promptly mail such opinion to all registered holders of
Preferred Stock.
(iv) For purposes of Section 5(c) hereof, the following provisions
(A) to (E) shall also be applicable:
(A) The number of shares of Common Stock outstanding at any
given time shall include shares of Common Stock owned or held by or for the
account of the Corporation and the sale or issuance of such treasure shares or
the distribution of any such treasury shares shall not be considered a Change of
shares for purposes of said sections.
(B) No adjustment of the Stated Conversion Price or the total
number of shares of Common Stock purchasable upon conversion of the Series A
Preferred Stock shall be made unless such adjustment would require an increase
or decrease of at least $.05 in such price; provided that any adjustments which
by reason of this clause (B) are not required to be made shall be carried
forward and shall be made at the time of and together
8
<PAGE>
with the next subsequent adjustment which, together with any adjustment(s) so
carried forward, shall require an increase or decrease of at least $.05 in the
Stated Conversion Price then in effective hereunder.
(C) In case of (1) the sale by the Corporation of any rights or
warrants to subscribe for or purchase, or any options for the purchase of,
Common Stock or any securities convertible into or exchangeable for Common Stock
without the payment of any further consideration other than cash, if any (such
convertible or exchangeable securities being herein called "Convertible
Securities"), or (2) the issuance by the Corporation, without the receipt by the
Corporation of any consideration therefor, of any rights or warrants to
subscribe for or purchase, or any options for the purchase of, Common Stock or
Convertible Securities, whether or not such rights, warrants or options or the
right to convert or exchange such Convertible Securities, are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such rights, warrants or options, or upon conversion or exchange of
such Convertible Securities (determined by dividing (x) the minimum aggregate
consideration payable to the Corporation upon the exercise of such rights,
warrants or options, plus the consideration received by the Corporation for the
issuance or sale of such rights, warrants or options, plus in the case of such
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, other than such Convertible Securities, payable upon the
conversion or exchange thereof, by (y) the total maximum number of shares of
Common Stock issuable upon the exercise of such rights, warrants or options or
upon the conversion or exchange of such Convertible Securities issuable upon the
exercise of such rights, warrants or options), is less than the Stated
Conversion Price in effect at the time the holders of Series A Preferred Stock
convert to Common Stock, then in the event the total maximum number of shares of
Common Stock issuable upon the exercise of such outstanding rights, warrants or
options or upon the conversion or exchange of such outstanding Convertible
Securities (as of the date of the issuance or sale of such rights, warrants or
options) shall be deemed to be outstanding shares of Common Stock for purposes
of Section 5(c) hereof and shall be deemed to have been sold for cash
immediately prior to the conversion of the Preferred Stock in an amount equal to
such price per share.
(D) In case of the sale by the Corporation of any Convertible
Securities, whether or not the right of
9
<PAGE>
conversion or exchange thereunder is immediately exercisable, and the price per
share for which Common Stock is issuable upon the conversion or exchange of such
Convertible Securities (determined by dividing (x) the total amount of
consideration received by the Company for the sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, other than such Convertible Securities, payable upon the conversion or
exchange thereof, by (y) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of such Convertible Securities) is less
than the Stated Conversion Price in effect at the time the holders of Series A
Preferred Stock convert to Common Stock, then the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of such outstanding
Convertible Securities (as of the date of the sale of such Convertible
Securities) shall be deemed to be outstanding shares of Common Stock for
purposes of Section 4(c) hereof and shall be deemed to have been sold for cash
immediately prior to the conversion of Series A Preferred Stock in an amount
equal to such price per share.
(E) In case of the sale of any shares of Common Stock, any
Convertible Securities, any rights or warrants to subscribe for or purchase, or
any options for the purchase of, Common Stock or Convertible Securities, the
consideration received by the Corporation therefor shall be deemed to be the
gross sales price therefor without deducting therefrom any expense paid or
incurred by the Corporation or any underwriting discounts or commissions or
concessions paid or allowed by the Corporation in connection therewith, and the
value of the consideration received (if such consideration is other than cash)
shall be the fair market value thereof on the date any such Common Stock,
Convertible Securities, rights or warrants is issued.
(v) If and whenever the Corporation shall grant to the holders
of common Stock, as such, rights or warrants to subscribe for or to purchase, or
any options for the purchase of, Common Stock or securities convertible into or
exchangeable for or carrying a right, warrant or option to purchase Common
Stock, the Corporation shal concurrently therewith grant to the holders of
Series A Preferred Stock all of such rights, warrants or options to which the
holders of Series A Preferred Stock would have been entitled as if, on the date
of grant such holders converted their Shares into Common Stock entitled to the
rights, warrants or options being granted by the Corporation. Such grant by the
Corporation to the holders of Series A Preferred Stock
10
<PAGE>
shall be in lieu of any adjustment which otherwise might be called for pursuant
to this Section 5.
(vi) The provisions of this Section 5 shall not be construed to
require adjustments in the Stated Conversion price for the Series A Preferred
Stock:
(A) With respect to issuances of Common Stock pursuant to the
exercise of rights, warrants or options or the conversion of Convertible
Securities outstanding at the date hereof or with respect to which adjustments
have been theretofore made pursuant to this Section 5; or
(B) With respect to issuances of Common Stock upon partial
or full conversion of Series A Preferred Stock.
6. Conversion at Corporation's Option.
----------------------------------
At any time following the date six months after the Series A Preferred
Stock is issued, the Corporation shall be the option of requiring all holders to
convert their Shares into one share of Common Stock.
7. Fractional Shares.
-----------------
If the number of shares of Common Stock deliverable upon conversion of
the Series A Preferred Stock is adjusted pursuant to Section 4 hereof, the
Corporation shall nevertheless not be required to issue fractions of shares,
upon conversation of the Series A Preferred Stock or otherwise, or to distribute
certificates that evidence fractional shares. With respect to any fraction of a
share called for upon any conversion of the Series A Preferred Stock, the
Corporation shall pay to the holder of the Series A Preferred Stock an amount in
cash equal to such fraction multiplied by the current market value of such
fractional share.
11
<PAGE>
EXHIBIT 4.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT MADE UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT.
Void after ___ p.m. ___________ Time, on __________________, 200__.
Warrant to Purchase _______ Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK
VISCORP
This is to Certify that, FOR VALUE RECEIVED,
_________________________
or registered assigns ("Holder"), is entitled to purchase, subject to the
provisions of this Warrant, from VisCorp, a Nevada corporation ("Company"), at
any time on or after _____________, 200__, and not later than ____ p.m.,
____________ Time, on ____________________, 200__, _____________ shares of
common stock, $0.01 par value, on the Company ("Common Stock") at a purchase
price per share of U.S. $3.00. The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be paid for a share
of Common Stock may be adjusted from time to time as hereinafter set forth. The
shares of Common Stock deliverable upon such exercise, and as adjusted from time
to time, are hereinafter sometimes referred to as "Warrant Stock" and the
exercise price of a share of Common Stock in effect at any time and as adjusted
from time to time is hereinafter sometimes referred to as the "Exercise Price."
This Warrant is one of a series of warrants identical in form issued by the
Company to purchase an aggregate of ____________________ (____) shares of Common
Stock of the Company and the term "Warrants" as used herein means all such
warrants (including this Warrant).
(a) Exercise of Warrant. Subject to the provisions of Section (k) hereof,
this Warrant may be exercised in whole or in part at any time or from time to
time on or after _______________, 200__, and not later than _____ p.m.,
____________ Time, on _________________, 200__, or if _________________, 200__,
is a day on which banking institutions are authorized by law to close, then on
the next succeeding day which shall not be such a day, by
<PAGE>
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price for the number of shares specified
in such form, together with all federal and state taxes applicable upon such
exercise. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the right of the holder to purchase the balance of the shares
purchasable hereunder. Upon receipt by the Company of this Warrant at the office
or agency of the Company, in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Holder.
(b) Reservation of Shares. The Company hereby agrees that at all times
---------------------
there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance or delivery upon exercise of this Warrant.
(c) Fractional Shares. No fractional shares or scrip representing
-----------------
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current market value of such fractional share, determined as
follows:
1. If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange, the
current value shall be the last reported sale price of the Common
Stock on such exchange on the last business day prior to the date
of exercise of this Warrant or if no such sale is made on such
day, the average closing bid and asked prices for such day on such
exchange; or
2. If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current value shall be the mean of the
last reported bid and asked prices reported by the National
Association of Securities Dealers Quotation System (or, if not so
quoted on NASDAQ, by the National Quotation
2
<PAGE>
Bureau, Inc.) on the last business day prior to the date of the
exercise of this Warrant; or
3. If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported,
the current value shall be an amount, not less than book value,
determined in such reasonable manner as may be prescribed by the
board of Directors of the Company, such determination to be final
and binding on the Holder.
(d) Exchange, Assignment or Loss of Warrant. This Warrant is exchangeable,
---------------------------------------
without expense, at the option of the Holder, upon presentation and surrender
hereof to the Company or at the office of its stock transfer agent, if any, for
other Warrants of different denominations entitling the holder thereof to
purchase in the aggregate the same number of shares of Common Stock purchasable
hereunder. This Warrant may no be sold, transferred, assigned or hypothecated
until ________________, 200_, except that it may be (i) assigned in whole or in
part to or among the officers of _____________________________________________;
(ii) transferred by operation of law as a result of the death of any transferee
to whom this Warrant may be transferred, and (iii) transferred to any successor
to the business of _____________. Any such assignment shall be made by surrender
of this Warrant to the Company or at the office of its stock transfer agent, if
any, with the Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax; whereupon the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be canceled. This Warrant may be
divided or combined with other Warrants which carry the same rights upon
presentation hereof at the office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. THe term "Warrant" as used herein includes any Warrants issued in
substitution for or replacement of this Warrant, or into which this Warrant may
be divided or exchanged. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction, or mutilation of this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfied indemnification,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall constitute an additional contractual
3
<PAGE>
obligation on the part of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by virtue hereof, be
--------------------
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) Anti-Dilution Provisions.
------------------------
1. Adjustments of Exercise Price. If the Company should at any time or
-----------------------------
from time to time within 36 months from date issue or sell any
shares of Common Stock (other than the Warrant Stock which may be
purchased under the Warrants or stock purchased pursuant to
options, warrants, and/or conversion rights outstanding as of the
date of this Warrant) without consideration or for a consideration
per share less than the Exercise Price in effect immediately prior
to the time of such issue or sale (except if issued in a
transaction involving a merger with another company or for payment
of any antecedent debt of the company), then forthwith upon such
issue or sale, the Exercise Price shall be adjusted to a price
(computed to the nearest cent) determined by dividing (i) the sum
of (x) the number of shares of Common Stock outstanding immediately
prior to such issue or sale multiplied by the Exercise Price in
effect immediately prior to such issue or sale, and (y) the
consideration, if any, received by the company upon such issue or
sale, by (ii) the total number of shares of Common Stock
outstanding immediately after such issue or sale. For purposes of
this subsection (f)(1), the following provisions (A) to (E) shall
also be applicable:
(A) Options. In case at any time hereafter the Company shall in any
-------
manner grant any right to subscribe for or to purchase, or any option
for the purchase of Common Stock or any stock or other securities
convertible into or exchangeable for Common Stock (such convertible or
exchangeable stock or
4
<PAGE>
securities being hereinafter referred to as "Convertible Securities") other than
the Warrants, and the minimum price per share for which Common Stock is
issuable, pursuant to such rights or options or upon conversion or exchange of
such Convertible Securities (determined by dividing (i) the total amount, if
any, received or receivable by the Company as consideration for the granting of
such rights or options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of such rights or
options, plus, in the case of such Convertible Securities, the minimum aggregate
amount of additional consideration, if any, payable upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of Common Stock
issuable pursuant to such rights or options or upon the conversion or exchange
of the total maximum amount of such Convertible Securities issuable upon the
exercise of such rights or options) shall be less than the Exercise Price in
effect immediately prior to the time of the granting of such rights or options,
then the total maximum number of shares of Common Stock issuable pursuant to
such rights or options or upon conversion or exchange of the total maximum
amount of such Convertible Securities issuable upon the exercise of such rights
or options shall (as of the date of granting of such rights or options) be
deemed to be outstanding and to have been issued for said price per share as so
determined; provided, ,that no further adjustment of the Exercise Price shall be
--------
made upon the actual issue of Common Stock so deemed to have been issued; and
further provided, that, upon the expiration of such rights (including rights to
- ----------------
convert or exchange) or options, (a) the number of shares of Common Stock deemed
to have been issued and outstanding by reason of the fact that they were
issuable pursuant to such rights or options (including rights to convert or
exchange) were not exercised, shall no longer be deemed to be issued and
outstanding, and (b) the Exercise Price shall forthwith be adjusted to the price
which would have prevailed had all adjustments been made on the basis of the
issue only of the shares of Common Stock actually issued upon the exercise of
such rights or options or upon conversion or exchange of such Convertible
Securities.
(B) Convertible Securities. In case the Company shall in any manner issue
----------------------
or sell any Convertible
5
<PAGE>
Securities, and the minimum price per share for which Common Stock is issuable
upon conversion or exchange of such Convertible Securities (determined by
dividing (i) the total amount received or receivable by the company as
consideration for the issue or sale of such Convertible Securities, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversion, if any, payable to the Company upon the conversion
or exchange thereof, by (ii) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the Exercise Price in effect immediately prior to the time of
such issue or sale, then the total maximum number of shares of Common Stock
issuable upon conversion or exchange of all such Convertible Securities shall
(as of the date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for said price per share as so
determined; provided, that no further adjustment of the Exercise Price shall be
--------
made upon the actual issue of Common Stock so deemed to have been issued; and,
further provided, that if any such issue or sale of such Convertible Securities
- ----------------
is made upon exercise of any right to subscribe for or to purchase or any option
to purchase any such Convertible Securities for which an adjustment of the
Exercise Price has been or is to be made pursuant to other provisions of this
subsection (f) (1) no further adjustment of the Exercise Price shall be made by
reason of such issue or sale; and, further provided, that, upon the termination
----------------
of the right to convert or to exchange such Convertible Securities for Common
Stock, (a) the number of shares of Common Stock deemed to have been issued and
outstanding by reason of the fact that they were issuable upon conversion or
exchange of any such Convertible Securities, which were not so converted or
exchanged, shall no longer be needed to be issued and outstanding, and (b) the
Exercise Price shall forthwith be adjusted to the price which would have
prevailed had all adjustments been made on the basis of the issue only of the
number of shares of Common Stock actually issued upon conversion or exchange of
such Convertible Securities.
(C) Required Conversion. After 6 months from the date of issuance and at
-------------------
the same time the Company has the option to the required Holder of this Warrant
(who
6
<PAGE>
is also a Preferred Stockholder of the Company), to convert the preferred shares
of the Company, this Warrant shall become fully exercisable.
(D) Determination of Issue Price. In case any shares of Common Stock or
----------------------------
Convertible Securities or any rights or options to purchase any such stock or
securities shall be issued for cash the consideration received therefor, after
deducting therefrom any commission or other expenses paid or incurred by the
Company for any underwriting of, or otherwise in connection with, the issuance
thereof, shall be deemed to be the amount received by they Company therefor. In
case any shares of Common Stock or Convertible Securities or any rights or
options to purchase any such stock or securities shall be issued for a
consideration part or all of which shall be other than cash, then, for the
purpose of this subsection (f)(1), the Board of Directors of the Company shall
make a good faith determination of the fair value of such consideration,
irrespective of accounting treatment, and such Common Stock, Convertible
Securities, rights or options shall be deemed to have been issued for an amount
of cash equal to the value so determined by the Board of Directors. The
reclassification of securities other than Common Stock into securities
including Common Stock shall be deemed to involve the issuance for a
consideration other than cash of such Common Stock immediately prior to the
close of business on the date fixed for the determination of security holders
entitled to receive such Common Stock. In case any shares of Common Stock or
Convertible Securities or any rights or options to purchase any such stock or
other securities shall be issued together with other stock or securities or
other assets of the Company for a consideration which includes both, the Board
of Directors of the Company shall determine what part of the consideration so
received is to be deemed to be consideration for the issue of such shares of
such Common Stock, Convertible Securities, rights or options (except as modified
by the exception in subsection (f)(1)).
(E) Determination of Date of Issue. In case the Company shall take a
------------------------------
record of the holders of any Common Stock for the purpose of entitling them (i)
to receive a dividend or other distribution payable in
7
<PAGE>
Common Stock or in Convertible Securities, or (ii) to subscribe for or
purchase Common Stock or Convertible Securities, then such record date
shall be deemed to be the date of the issue or sale of the share of
common Stock deemed to have been issued or sold upon the declaration of
such dividend or the making of such other distribution or the date of
the granting of such right of subscription or purchase, as the case may
be.
(F) Treasure Share. For the purpose of this subsection (f)(1),
--------------
shares of Common Stock at any relevant time owned or held by, or for
the account of, the Company shall not be deemed outstanding.
2. Adjustment of Number of Shares. Anything in this Section (f) to the
------------------------------
contrary notwithstanding, in case the Company shall at any time
issue Common Stock or Convertible Securities by way of dividend or
other distribution on any stock of the Company or subdivided or
combine the outstanding shares of Common Stock, the Exercise Price
shall be proportionally decreased in the case of such issuance (on
the day following the date fixed for determining shareholders
entitled to receive such dividend or other distribution) or
decreased in the cases of such subdivision or increased in the case
of such combination (on the date that such subdivision or
combination shall become effective).
3. No Adjustment for Small Amounts. Anything in this Section (f) to
-------------------------------
the contrary notwithstanding, the Company shall not be required to
give effect to any adjustment in the Exercise Price unless and
until the net effect of one or more adjustments, determined as
above provided, shall have required a change of the Exercise Price
by at least one cent, but when the cumulative net effect of more
than one adjustment so determined shall be to change the actual
Exercise Price by at least one cent, such Change in the Exercise
Price shall thereupon be given effect.
4. Number of Shares Adjusted. Upon any adjustment of the Exercise
-------------------------
Price other than pursuant to Section (f)(1), the holder of this
Warrant shall thereafter (until another such adjustment) be
8
<PAGE>
entitled to purchase, at the new Exercise Price, the number of
shares, calculated to the nearest full share, obtained by
multiplying the number of shares of Common Stock initially
issuable upon exercise of this Warrant by the Exercise Price in
effect on the date hereof and dividing the product so obtained by
the new Exercise Price.
5. Common Stock Defined. Whenever reference is made in this Section
--------------------
(f) to the issue or sale of shares of Common Stock, the term
"Common Stock" shall mean the Common Stock of the Company of the
class authorized as of the date hereof and any other class of
stock ranking on a parity with such Common Stock. However, subject
to the provisions of Section (i) hereof, shares issuable upon
exercise hereof shall include only shares of the class designated
as Common Stock of the Company as of the date hereof.
(g) Officer's Certificate. Whenever the Exercise Price shall be adjusted
---------------------
as required by the provisions of Section (f) hereof, the Company shall
forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office, and with its stock transfer agent,
if any, an officer's certificate showing the adjusted Exercise Price
determined as herein provided and setting forth in reasonable detail
the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the
Holder and the Company shall, forthwith after each such adjustment,
deliver a copy of such certificate to the Holder. Such certificate
shall be conclusive as to the correctness of such adjustment.
(h) Notices to Warrant Holders. So long as this Warrant shall be
--------------------------
outstanding and unexercised (i) if the Company shall pay any dividend
or make any distribution upon the common Stock or (ii) if the Company
shall offer to the holders of common Stock for subscription or
purchase by them any shares of stock of any class or any other rights
or (iii) if any capital reorganization of the company,
reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale, lease or
transfer of all or substantially all of the property and assets of the
Company to another corporation, or voluntary or involuntary
dissolution, liquidation or winding up of the company shall be
effected, then in any such case, the Company shall cause to be
delivered to the
9
<PAGE>
Holder, at least ten days prior to the date specified in (x) or (y) below, as
the case may be, a notice containing a brief description of the proposed action
and stating the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any, is to be fixed,
as of which the holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
(i) Reclassification, Reorganization or Merger. In case of any
------------------------------------------
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of an
issuance of Common Stock by way of dividend or other distribution or of a
subdivision or combination), or in case of any consolidation or merger of the
company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
Company shall cause effective provision to be made so that the holder shall have
the right thereafter, by exercising this Warrant, to purchase the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, capital reorganization or other change, consolidation, merger,
sale or conveyance. Any such provision shall include provision for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. The foregoing provisions of this Section (i) shall
similarly apply to successive reclassifications, capital reorganizations and
changes of shares of Common Stock and to successive consolidations, mergers,
sales or conveyances. In the event that in any such capital reorganization or
reclassification, consolidation, merger, sale or conveyance, additional shares
of Common Stock shall be issued in exchange, conversion, substitution or
payment, in whole or in part, for or of a security of the Company other than
Common Stock, any such issue shall be treated as an issue of Common Stock
covered by the provisions of subsection (f)(i) hereof with the amount of the
consideration received upon the
10
<PAGE>
issue thereof being determined by the Board of Directors of the Company, such
determination to be final and binding on the holder.
(j) Spin-Offs.
---------
In the event the Company spins-off, a subsidiary by distributing to the
shareholders of the Company as a dividend or otherwise the stock of the
subsidiary, the Company shall reserve for the life of the Warrant shares of the
subsidiary to be delivered to the holders of the Warrants upon exercise to the
same extent as if they were owners of record of the Warrant Stock on the record
date for payment of the shares of the subsidiary.
(k) Registration under the Securities Act of 1933
---------------------------------------------
1. In the event that the Company files a registration statement
(defined herein to include a Notification under Regulation A under
the Act and the Offering Circular included therein) under the
Securities Act of 1933, as amended ("Act") which relates to a
current offering of securities of the Company (except in
connection with an offering ot employees), such registration
statement and the prospectus included therein shall also, at the
written request to the Company by the owners of Warrants or
Warrant Stock acquired upon exercise of the Warrants and/or which
may be acquired upon exercise of the Warrants, include and relate
to, and meet the requirements of the Act with respect to, the
public offering of such Warrants or such Warrant Stock so as to
permit the public sale thereof in compliance with the Act. The
Company shall give written notice to the holders of its intention
to file a registration statement under the Act relating to a
current offering of the aforesaid securities of the Company, 60 or
more days prior to the filing of such registration statement, and
the written request provided for in the first sentence of this
subsection shall be made by the Owners 45 or more days prior to
the date specified in the notice as the date on which it is
intended to file such registration statement. Neither the delivery
of such notice by the company nor of such request by the Owners
shall in any way obligate the Company to file such registration
statement and notwithstanding the
11
<PAGE>
filing of such registration statement, the Company may, at any
time prior to the effective date thereof, determine not to offer
the securities to which such registration statement relates,
without liability to the Owners, except that the Company shall pay
such expenses as are contemplated to be paid by it under
subsection (4) of this Section.
2. In addition, upon written notice at any time after
________________, 200_, and on or before four years thereafter
upon written request from any majority holder (as defined in
subsection (6) of this Section below) that he or it contemplates
the transfer of all or any of his or its Warrants or Warrant Stock
under such circumstances that a public offering, within the
meaning of the Act, of the Warrants or Warrant Stock will be
involved, the Company, as promptly as possible after the receipt
of such notice, shall file a new registration statement or, if
available, a Notification under Regulation A under the Act, with
respect to the offering and sale or other disposition of the
Warrants or Warrant Stock with respect to which it shall have
received such notice. Within ten days after receiving any such
notice, the Company shall give notice to the other holders of the
Warrants and Warrant Stock advising that the Company is proceeding
with such registration statement or Notification and offering to
include therein Warrants or Warrant Stock of such holders. The
Company shall not be obligated to any such other holder unless
such other holder shall accept such offer by notice in writing to
the Company within ten days thereafter.
3. In addition, upon written notice at any time after
________________, 200_, and on or before four years thereafter
from any holders of a minimum of Warrants to purchase
_____________ shares of Warrant Stock or ____________ shares of
Warrant Stock acquired upon exercise of the Warrants and/or which
may be acquired upon exercise of the Warrants, that he or it
contemplates the transfer of all or any of his or its Warrants or
Warrant Stock under such circumstances that public offering,
within the meaning of the Act, of the Warrants or Warrant Stock
will be involved, the
12
<PAGE>
Company shall, at the expense of such holder (and any other holder
of Warrants and/or Warrant Stock who shall join in such notice as
hereinafter provided), as promptly as possible after receipt of
such notice, file a new registration statement or, if available, a
Notification under Regulation A under the Act, with respect to the
offering and sale of other disposition of the Warrants or Warrant
Stock with respect to which it shall have received such notice.
Within ten days after receiving such notice, the Company shall give
notice to the other holders of the Warrants and Warrant Stock
advising that the Company is proceeding with the registration
statement or Notification and offering to include therein Warrants
or Warrant Stock of such holders if they agree to pay the pro rata
cost thereof. The Company shall not be obligated to any such other
holder unless such other holder shall accept such offer by notice
in writing to the Company within ten days thereafter. If the cost
of such registration statement or notification is to be borne
solely by holders of Warrants and/or Warrant Stock, no other
securities of the Company shall be included in such registration
statement or Notification for public offering or sale or shall be
the subject of any registration statement or Notification filed
within 90 days following the latest effective date of any
registration statement or Notification filed pursuant to the
request of any holder of Warrants and/or Warrant Stock unless (A)
with the prior written consent of , upon such terms
--------------
and conditions as it may deem desirable or (B) the owners or
holders of such other securities (including the Company) shall bear
a pro rata portion of the cost thereof, provided, however, that, in
-------- -------
no event, shall holders of Warrants and/or Warrant Stock who give,
or join in, the notice to the Company provided for herein be
required to bear more than 50% of such cost.
4. In each instance in which pursuant to subsections (1), (2) and (3)
of this Section, the Company shall take any action to permit a
public offering or sale or other distribution of the Warrants or
13
<PAGE>
Warrant Stock (collectively referred to as "Warrant Stock"), the
Company shall:
(A) Supply to _____________________, as representatives of the
holders intending to make a public distribution of their Warrant Stock
(the Holder by his receipt of this Warrant hereby acknowledging his
appointment of _______________________, as his representative for
purposes of this Warrant), two executed copies of each registration
statement or Notification and a reasonable number of copies of the
preliminary, final and other prospectus or offering circular in
conformity with requirements of the Act and the Rules and Regulations
promulgated thereunder and such other documents as
________________________ shall reasonably request.
(B) Cooperate in taking such action as may be necessary to
register or qualify the Warrant Stock under such other securities acts
or blue sky laws of such jurisdictions as ________________________,
shall reasonably request and to do any and all other acts and things
which may be necessary or advisable to enable the holders of such
Warrant Stock to consummate such proposed sale or other disposition of
the Warrant Stock to consummate any such proposed sale or other
disposition of the Warrant Stock in any such jurisdiction; provided,
--------
however, that in no event shall the Company be obligated, in
-------
connection therewith, to qualify to do business or to file a general
consent to service of process in any jurisdiction where it shall not
then be qualified.
(C) Keep effective for a period of not less than 90 days after
the initial effectiveness thereof all such registrations or
Notifications under the Act and cooperate in taking such action as may
be necessary to keep effective such other registrations and
qualifications, and do any and all other acts and things for such
period - not to exceed said twelve months - as may be necessary to
permit the public sale or other disposition of such Warrant Stock by
such holders.
(D) Indemnify and hold harmless each such holder and each
underwriter, within the meaning of the Act, who may purchase from or
sell for any such holder, any
14
<PAGE>
Warrant Stock, from and against any and all losses, claims, damages, and
liabilities (including, but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing, defending or settling any
claim) arising from (i) any untrue statement of a material fact contained in any
registration statement or Notification furnished pursuant to clause (A) of this
subsection, or any prospectus or offering circular included therein or (ii) any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein no misleading (unless such untrue
statement or omission was based upon information furnished or required to be
furnished in writing to the Company by such holder or underwriter expressly for
use therein), which indemnification shall include each person, if any, who
controls any such holder or underwriter within the meaning of the Act; provided,
--------
however, that the Company shall not be so obligated to indemnify any such holder
- -------
or underwriter or controlling person unless such holder and underwriter shall at
the same time indemnify the Company, its directors, each officer signing any
registration statement or Notification or any amendment to any registration
statement or Notification and each person, if any, who controls the Company
within the meaning of the Act, from and against any and all losses, claims,
damages and liabilities (including, but not limited to, any and all expanses
whatsoever reasonably incurred in investigating, preparing, defending or
settling any claim) arising from (iii) any untrue statement of a material fact
contained in any registration statement or Notification or any amendment to any
registration statement or Notification or prospectus or offering circular
furnished pursuant to Clause (A) of this subsection, or (iv) any omission to
state therein a material fact required to be stated herein or necessary to make
the statements therein no misleading, but he indemnity of such holder,
underwriter or controlling person shall be limited to liability based upon
information furnished, or required to be furnished, in writing to the Company by
such holder or underwriter or controlling person expressly for use therein. The
indemnity agreement of the Company herein shall not inure to the benefit of any
such underwriter (or to the benefit of any person who controls such underwriter)
on account of any losses, claims, damages,
15
<PAGE>
liabilities (or actions or proceedings in respect thereof) arising from
the sale of any of such Warrant Stock by such underwriter to any person
if such underwriter failed to send or give a copy of the prospectus or
offering circular furnished pursuant to Clause (A) of this subsection,
as the same may then be supplemented or amended (if such supplement or
amendment shall have been furnished to _____________, pursuant to said
Claus (A)), to such person with or prior to the written confirmation of
the sale involved.
5. The Company shall comply with the requirements of subsection (1)
and (with respect tot he first notice only) subsection (2) of this
Section (including the related requirements of subsection (4) of
this Section), at its own expense, excluding underwriting
commissions, transfer taxes, charges of holders' counsel and
underwriter's expense allowance attributable tot he Warrant Stock.
In no event shall the Company be required to file a registration
statement (and appropriate amendments thereto) pursuant to the
requirements of subsection (2) more than once and pursuant to
subsection (3) more than once. Provided, further, any time a
registration statement has been filed and become effective as to
which subsections (1), (2) or (3) are applicable, there shall be no
further obligation pursuant to this Section (k) to file a
registration statement until after twelve months have elapsed from
the effective date. Provided, further, any request pursuant to
subsections (2) and (3) shall be made at a time which reasonably
allows for the registration statement to become effective prior to
the end of the then current fiscal year.
The Company's obligation under said subsections (1), (2) and (3) shall
be conditioned as to each such public offering, upon a timely receipt by
the Company in writing of:
(a) Information as to the terms of such public offering
furnished by or on behalf of each holder intending to make a
public distribution of his or its Warrants or Warrant Stock;
and
16
<PAGE>
(b) Such other information as the Company may reasonably require from such
holders, or any underwriter for any of them, for inclusion in such
registration statement or Notification or post-effective amendment.
6. The term "majority holder" as used in this Section shall include any
owner or combination of owners of Warrants or Warrant Stock in any
combination if the holder of the aggregate number of:
(a) the Warrants held by him or among them, plus
(b) the Warrants which he or they would be holding if the Warrants for the
Warrant Stock owned by him or among them had not been exercised
would constitute seventy-five percent (75%) of the Warrants originally issued.
7. Any notices or certificates by the Company to the Holder and by the
Holder to the Company shall be deemed delivered if in writing and
delivered personally or sent by certified mail to the Holder,
addressed to him in care of _______________________________________,
if the Holder has designated, by notice in writing to the Company, any
other address, to such other address, and, if to the Company,
addressed to it, _______________________________________. The Company
may changes its address by written notice to _____________________ and
__________________________ may change its address by written notice to
the Company.
(1) Transfer to Comply with the Securities Act of 1933
--------------------------------------------------
1. This Warrant or the Warrant Stock or any other security issued or
issuable upon exercise of this Warrant may not be offered or sold
except in conformity with the Securities Act of 1933, as amended, and
then only against receipt of an agreement of such person to whom such
offer of sale is made to comply with the provisions of this
17
<PAGE>
Section (1) with respect to any resale or other disposition of
such securities.
2. The Company may cause the following legend to be set forth on
each Warrant and certificate representing Warrant Stock or any
other security issued or issuable upon exercise of this Warrant
not theretofore distributed to the public or sold to undewriters
for distribution to the public pursuant to Section (k) hereof,
unless counsel for the Company is of the opinion as to any such
certificate that such legend in unnecessary:
The securities represented by this certificate may not be offered for
sale, sold or otherwise transferred except pursuant to an effective
registration statement made under the Securities Act of 1933 (the
"Act"), or pursuant to an exemption from registration under the Act.
(m) Applicable Law. This Warrant shall be governed by, and construed in
--------------
accordance with, the laws of the State of _________________.
Dated: _______________, 1997 VISCORP
By:_________________________________
President
[SEAL]
ATTEST:
__________________________
Secretary
18
<PAGE>
PURCHASE FORM
Date _________________, 200_
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchase _________ shares of common Stock and hereby makes payment
of $_____________ in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
NAME:______________________________________________________
(Please type or print in block letters)
ADDRESS:___________________________________________________
SIGNATURE:_________________________________________________
----------------
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________
hereby sells, assigns and transfers unto:
NAME:______________________________________________________
(Please type or print in block letters)
ADDRESS:___________________________________________________
the right to purchase Common Stock represented by this Warrant to the extent of
____________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint ________________________________, attorney,
to transfer the same on the books of the Company with full power of substitution
in the premises.
Date:__________________, 200_
_____________________________________
Signature
19
