<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 2000
REGISTRATION NO. 33-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
INTERSCIENCE COMPUTER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
California 95-3880130
--------------------------------- -----------------------------
(State or other jurisdiction (I.R.S. Employee I.D. Number)
of incorporation or organization)
600 HAMPSHIRE ROAD, SUITE 105, WESTLAKE VILLAGE, CALIFORNIA 91361
-----------------------------------------------------------------
(Address of Principal Executive Office, including Zip Code)
2000 STOCK OPTION PLAN
WARRANTS FOR CERTAIN EMPLOYEES, DIRECTORS AND
CONSULTANTS OF INTERSCIENCE COMPUTER CORPORATION
SERVICES AGREEMENT WITH DOVEL & LUNER, LLP
------------------------------------------------
(Full title of the agreement)
(805) 370-3100
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
COPIES TO:
DAVID L. FICKSMAN, ESQ.
LOEB & LOEB LLP
1000 WILSHIRE BOULEVARD, SUITE 1800
LOS ANGELES, CALIFORNIA 90017
(213) 688-3698
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(1) per unit(2) offering price fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,677,500 $4.1875 $7,024,531.25 $1,854.48
==============================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
common stock which becomes issuable under the Plans or Warrants being
registered pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the Registrant's outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h), based on the average of the high and low
prices on May 12, 2000.
<PAGE> 2
INTRODUCTORY STATEMENT
Interscience Computer Corporation, a California corporation, hereby
files this registration statement on Form S-8 relating to (1) up to 1,400,000
shares of our common stock issuable in connection with our 2000 Stock Option
Plan (the "2000 Stock Option Plan"), (2) 40,000 shares of our common stock
issuable pursuant to a warrant granted to Joel Weinberg, Esq. in exchange for
legal services provided by Mr. Weinberg to Interscience, (3) 10,000 shares of
our common stock issuable pursuant to a warrant granted to Steve Biegenzahn,
Esq. in exchange for legal services provided by Mr. Biegenzahn to Interscience,
(4) 40,000 shares of our common stock issuable pursuant a Services Agreement
between Interscience and Dovel & Luner, LLP in exchange for legal services
provided by Dovel & Luner, LLP to Interscience (5) 12,500 shares of our common
stock issuable pursuant to a warrant granted to Barry Lederman, an employee of
Interscience, (6) 12,500 shares of our common stock issuable pursuant to a
warrant granted to Neil Murvin, an employee of Interscience (7) 12,500 shares of
our common stock issuable pursuant to a warrant granted to Chic Vitagliano, an
employee of Interscience, (8) 50,000 shares of our common stock issuable
pursuant to a warrant granted to Joseph R. Mancuso, a director of Interscience
as of the date of the issuance of such warrant, (9) 50,000 shares of our common
stock issuable pursuant to a warrant granted to George Harmon, a director of
Interscience as of the date of the issuance of such warrant, and (10) 50,000
shares of our common stock issuable pursuant to a warrant granted to Norman
Baker, a director of Interscience. Also, this registration statement is intended
to register for reoffer and/or resale shares of common stock that may be
acquired in the future under the 2000 Stock Option Plan and the warrant issued
to Norman Baker (as described above) by affiliates of Interscience, as defined
by Rule 405 under the Securities Act.
The materials constituting the reoffer prospectus have been prepared
pursuant to Part I of Form S-3, in accordance with General Instruction C to Form
S-8.
<PAGE> 3
REOFFER PROSPECTUS
INTERSCIENCE COMPUTER CORPORATION
Common Stock
Up to 1,450,000 Shares
This Prospectus relates to the resale of (1) up to 1,400,000 shares of
common stock of Interscience Computer Corporation that may be acquired pursuant
to our 2000 Stock Option Plan and (2) 50,000 shares of common stock of
Interscience that may be acquired by affiliates of Interscience pursuant to a
warrant granted to Norman Baker, a director of Interscience and which may be
offered for resale from time to time by, people named under "Selling Security
Holders" on the NASD OTC Bulletin Board, where our common stock currently is
traded, or in negotiated transactions, at prices and on terms then available.
We will not receive any of the proceeds from the sale of our common
stock (hereinafter, the "Securities") except that we will receive funds from the
exercise of options or the warrant. We will pay all of the expenses associated
with the registration of the Securities and this Prospectus. The Selling
Security Holders will pay the other costs, if any, associated with any sale of
the Securities.
Our common stock is quoted on the NASD OTC Bulletin Board under the
symbol "IEIC." On May 12, 2000, the last reported sale price per share of our
common stock, as quoted on the over the counter market, was $4.00. We intend to
apply for listing on The Nasdaq Stock Market.
Our principal executive office is located at 600 Hampshire Road, Suite
105, Westlake Village, California 91361.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
THESE SECURITIES. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS MAY 12, 2000.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information..........................................................2
Incorporation by Reference.....................................................2
Risk Factors...................................................................3
Selling Security Holders.......................................................4
Use of Proceeds................................................................4
Plan of Distribution...........................................................4
Legal Matters..................................................................5
Experts........................................................................5
Position of the Commission Regarding Indemnification...........................5
</TABLE>
AVAILABLE INFORMATION
We have filed a registration statement on Form S-8 with the Securities
and Exchange Commission under the Securities Act. This Prospectus omits some
information and exhibits included in the registration statement, copies of which
may be obtained upon payment of a fee prescribed by the Commission or may be
examined free of charge at the principal office of the Commission in Washington,
D.C.
We are subject to the informational requirements of the Exchange Act,
and in accordance therewith file reports and other information with the
Commission The reports and other information filed by us with the Commission can
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
regional offices of the Commission located at 7 World Trade Center, New York,
New York 10048, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511 and 11th floor, 5670 Wilshire Boulevard, Los Angeles, California
90036. Copies of that material can also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, the Commission maintains a web site that contains
reports, proxy and information statements and other information regarding
issuers that file electronically with the Commission at http://www.sec.gov.
INCORPORATION BY REFERENCE
The following documents previously filed by us with the Commission are
incorporated in this Prospectus by reference:
(1) Our Annual Report on Form 10-KSB for the year ended September 30,
1999 which was filed with the Commission on January 13, 2000;
(2) Our Quarterly Report on Form 10-QSB for the quarterly period ended
December 31, 1999 which was filed with the Commission on February 22, 2000;
(3) Our Quarterly Report on Form 10-QSB for the quarterly period ended
March 31, 1999 which was filed with the Commission on May 15, 2000; and
(4) The description of our common stock contained in our registration
statement under Section 12 of the Exchange Act of 1934 relating to our common
stock, including any amendment or report filed for the purpose of updating such
description.
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<PAGE> 5
All reports and other documents that we file pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act of 1934 prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then remaining unsold
are incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such reports and documents.
Copies of all documents which are incorporated by reference will be
provided without charge to anyone to whom this Prospectus is delivered upon a
written or oral request to Interscience Computer Corporation, 600 Hampshire
Road, Suite 105, Westlake Village, California 91361, Attn: Corporate Secretary,
(805) 370-3100.
RISK FACTORS
We have a limited operating history in the software business.
Our company has been in business since 1983 and has been a publicly
traded company since September 1993. In September 1999, we acquired the assets
of Camino Software Systems, Inc., which resulted in our entering into a new line
of business. All of our prior business divisions (high speed printer sales and
service and consumable sales) have been sold or discontinued. Although we
currently have a small amount of revenue from the recently acquired assets, we
are starting a new business in a highly technical and competitive market, with
new risks for investors and shareholders. Such risks relate to our potential
inability to:
- acquire new customers;
- complete successful implementation of our software applications in a
manner that is scalable;
- continue to offer new services that complement our existing
offerings; and
- increase awareness of our brand.
To address these risks, we must, among other things, implement and
successfully execute our business strategy, continue to develop and upgrade our
technology, provide superior customer service, respond to competitive
developments, and attract, retain and motivate qualified personnel. There can be
no assurance that we will be successful in addressing such risks or that our
business strategy will be successful, and the failure to do so could have a
material adverse effect on our business, prospects, financial condition and
results of operations.
Need for additional financing.
We will require additional financing in order to expand our business.
Our working capital requirements in the foreseeable future will depend on a
variety of factors including our ability to implement our business plan. There
can be no assurance that we will be able to successfully negotiate or obtain
additional financing. Our ability to obtain additional capital will be dependent
on market conditions, the national economy and other factors outside our
control. If adequate funds are not available or are not available at acceptable
terms, our ability to finance our expansion, develop or enhance services or
products or respond to competitive pressures would be significantly limited. The
failure to secure necessary financing will have a material adverse effect on our
business, prospects, financial condition and results of operations.
3
<PAGE> 6
If we are unable to adapt our products to rapidly changing technology, our
reputation and our ability to grow our revenues could be harmed.
The markets we serve are characterized by rapidly changing technology,
evolving industry standards, emerging competition and the frequent introduction
of new software. We cannot assure you that we will be able to enhance existing
or develop new products that meet changing customer needs in a timely and
cost-effective manner. Prolonged delays resulting from our efforts to adapt to
rapid technological change, even if ultimately successful, could harm our
reputation within our industry and our ability to grow our revenues.
We face significant competition from other providers of computer software.
The markets for our computer software are characterized by intense
competition and an increasing number of new market entrants who have developed
or are developing potentially competitive products. Further, the cost barriers
to these markets are relatively low, which means our competitors range from
small companies with limited resources to large, more established companies.
Some competitors, regardless of size, have substantially greater financial,
technical, marketing, distribution, personnel and other resources. For example,
current and future competitors with greater financial resources than us may be
able to undertake more extensive marketing campaigns and adopt more aggressive
pricing policies. It is possible that we may not have the resources to withstand
these and other competitive forces.
Our earnings growth is dependent upon acceptance of our products and our ability
to increase demand for data storage and management software products..
Our earnings growth depends primarily upon market acceptance of our data
storage and management software products. Our products may not be able to be
successfully marketed or achieve customer acceptance, and we may be unable to
increase demand for our product. Our strategy to increase our customer base
includes investment in programs designed to heighten consumer awareness of our
product and services.
If we do not successfully develop new products that keep pace with technology,
our competitive position will be weakened.
The market for our products is new and emerging, and is characterized by
rapid technological advances, changing customer needs and evolving industry
standards. Accordingly, our ability to realize our expectations will depend on
our:
- Ability to timely develop new software products that keep pace with
developments in technology;
- Ability to meet evolving customer requirements which are often
difficult to predict; and
- Success at enhancing our current product offerings and delivering
those products through appropriate distribution channels.
We may not be successful in developing and marketing, on a timely and
cost-effective basis, enhancements to our software products or new products
which respond to technological advances and satisfy increasingly sophisticated
customer needs. If we fail to introduce new products, or if new industry
standards emerge that we do not anticipate or adapt to, our software products
could be rendered obsolete and our competitive position will be weakened.
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Our business will suffer if our software development is delayed.
Any failure to release new products and upgrades on time may result in:
- customer dissatisfaction;
- cancellation of orders;
- negative publicity;
- loss of revenue; or
- slower market acceptance.
We operate in a developing market with increasing participants.
The market for computer software is rapidly evolving and is
characterized by an increasing number of market entrants who have introduced or
developed products and services. It is possible that a single supplier may
dominate one or more market segments. Additionally, there may be insufficient
market acceptance of our products because the market for computer software
changes rapidly.
We rely on key management personnel.
Our performance is substantially dependent on the continued services and
the performance of our senior management and other key personnel. Our
performance also depends on our ability to retain and motivate our other
officers and key employees. The loss of the services of any of our executive
officers or other key employees could have a material adverse effect on our
business, prospects, financial condition and results of operations. Our future
success also depends on our ability to identify, attract, hire, train, retain
and motivate other highly skilled technical, managerial and marketing personnel.
Competition for such personnel is intense, and there can be no assurance that we
will be successful in attracting and retaining such personnel. The failure to
attract and retain the necessary technical, managerial and marketing personnel
could have a material adverse effect on our business, prospects, financial
condition and results of operations.
Our business substantially depends upon the continued growth of the data storage
and management software market.
Our future revenue and profits, if any, substantially depend upon the
continued growth and development of the data storage and management software
market.
We could incur substantial costs defending our intellectual property from claims
of infringement.
The software industry is characterized by frequent litigation regarding
copyright, patent, trademark and other intellectual property rights. We may be
subject to future litigation based on claims that our own intellectual property
rights are invalid. We expect that software product developers will increasingly
be subject to infringement claims as the number of products and competitors in
our industry segment grows and the functionality of products overlaps. Claims of
infringement could require us to re-engineer or rename our products or seek to
obtain licenses from third parties in order to continue offering our products.
These claims could also result in significant expense to us and the diversion of
our management and technical resources, even if we ultimately prevail. Licensing
or royalty agreements, if required, may not be available on terms acceptable to
us or at all.
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Our ability to become a data storage and management solution for any operating
platform is not proven.
The current product is marketed primarily to Novell customers who
utilize the Novell operating system. While other operating systems may provide
similar services, they are not likely to be close enough to allow direct porting
of our programs to those platforms. Consequently, extending our product to other
platforms will require us to allocate and devote significant resources. Such
resources may be difficult and expensive to acquire. A more likely course of
action will be to seek out existing technology in the other platforms that can
be used as-is or modified to be integrated with our own existing technology.
This course of action is associated with its own set of risks and challenges
including the ability to: (1) find the right products, (2) integrate such
products with our products in a timely fashion, (3) create the business
relationships necessary to make such ventures economically and operationally
feasible, and (4) obtain adequate capital to complete the acquisition of and
integration of such technology.
SELLING SECURITY HOLDERS
This Prospectus relates to possible sales by certain of our officers and
directors of shares of our common stock purchased by them through the exercise
of options of our common stock granted to them under our 2000 Stock Option Plan
and the exercise by Norman Baker, a current director, of the warrant granted to
him by our company. The following table sets forth the name and position of each
prospective Selling Security Holder who is a director or executive officer of
our company; the number of shares of common stock owned as of the date of this
Prospectus, including shares which may be acquired pursuant to the exercise of
outstanding options and warrants; the number of shares being offered and the
number of shares and the percentage of all outstanding shares owned assuming the
sale of all the shares covered by this Prospectus.
<TABLE>
<CAPTION>
Shares Beneficially Number of Shares Beneficially Owned
Owned Prior to Shares After Offering (2)
Offering (1) Being Number of
Name and Position Number Percent Offered Shares Percent(2)
- ----------------- --------- ------- --------- --------- ----------
<S> <S> <C> <C> <C> <C>
Walter Kornbluh (3) 1,245,200 17.0% 542,000 703,200 9.6%
Stephen Crosson (4) 788,800 10.7% 348,000 440,800 6.0%
Norman Baker (5) 85,000 1.2% 50,000 35,000 .5%
Executive Officers and
Directors as a group
(three persons) 2,119,000 28.9% 940,000 1,179,000 16.1%
</TABLE>
(1) As used herein, the term beneficial ownership is defined by Rule 13d.3
under the Securities Exchange Act of 1934 as consisting of sole or shared
voting power and/or sole or shares investment power subject to community
property laws where applicable.
(2) Based on 7,339,556 shares of our common stock outstanding as of May 1,
2000.
(3) Includes currently exercisable options to purchase (a) 300,000 shares from
Renaissance Capital Growth & Income Fund III, Inc. ("RCC"); (b) 120,000
shares from Frank LaChapelle at $3.00 per share; (c) 112, 200 shares from
La Jolla Cove Investors at $1.80 per share; (d) 92,000 shares from
Interscience at $.56 per share; (e) 180,000 shares from the Company at
$3.87 per share; (f) 90,000 shares from
6
<PAGE> 9
Interscience at $5.00 per share; (g) 90,000 shares from Interscience at $6.50
per share; and (h) 90,000 shares from Interscience at $7.50 per share.
(4) Includes currently exercisable options to purchase (a) 200,000 shares from
RCC at $2.00 per share; (b) 80,000 shares from Frank LaChapelle at $3.00
per share; (c) 74,800 shares from La Jolla Cove Investors at $1.80 per
share; (d) 48,000 shares from Interscience at $.56 per share; (e) 120,000
shares from Interscience at $3.87 per share; (f) 60,000 shares from
Interscience at $5.00 per share; (g) 60,000 shares from Interscience at
$6.50; and (h) 60,000 shares from Interscience at $7.50 per share.
(5) Includes three year options to purchase 50,000 shares of our common stock
at $1.00 per share.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the Securities
offered hereby, except that we will receive funds from the exercise of options
or the warrant.
PLAN OF DISTRIBUTION
We are registering the Securities on behalf of the Selling Security
Holders. All costs, expenses and fees in connection with the registration of the
Securities offered hereby will be borne by us. Brokerage commissions and similar
selling expenses, if any, attributable to the sale of the Securities will be
borne by the Selling Security Holders (or their donees or pledgees).
The decision to sell any Securities is within the discretion of the
holder, subject generally to our policies affecting the timing and manner of
sale of common stock by our affiliates. There can be no assurance that any
shares will be sold by Selling Security Holders.
We anticipate that any sales of the shares offered by this Prospectus by
Selling Security Holders will be made to the public on the NASD OTC Bulletin
Board where our common stock currently is traded or on securities exchanges,
through automated quotation systems or in other markets where our common stock
may be traded, such as The Nasdaq Stock Market on which we intend to apply for
listing, or in negotiated transactions. We anticipate that sales will be at
prices current when the sales take place or at negotiated prices.
The Selling Security Holders may effect transactions by selling
Securities directly to purchasers or to or through broker-dealers, which may act
as agents or principals. These broker-dealers may receive compensation in the
form of discounts, concessions, or commissions from the Selling Security Holders
and/or the purchasers of Securities for whom the broker-dealers may act as
agents or to whom they sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
The Selling Security Holders and any broker-dealers that act in
connection with the sale of Securities might be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any commissions
received by them while acting as principals might be deemed to be underwriting
discounts or commissions under the Securities Act. The Selling Security Holders
may agree to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the Securities against certain liabilities
including liabilities arising under the Securities Act.
Because Selling Securities Holders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, the Selling Security
Holders will be subject to the prospectus delivery requirements of the
Securities Act.
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<PAGE> 10
Selling Security Holders also may resell all or a portion of the
Securities in open market transactions in reliance upon Rule 144 under the
Securities Act, provided they meet the criteria and conform to the requirements
of Rule 144. There is no present plan of distribution.
LEGAL MATTERS
Loeb & Loeb LLP has acted as our counsel in connection with this
offering, including the validity of shares that may be offered by this
prospectus. One of the partners of Loeb & Loeb LLP is the beneficial owner of
12,500 shares of our common stock.
EXPERTS
The financial statements of Interscience appearing in Interscience's
Annual Report (Form 10-KSB) for the year ended September 30, 1999, have been
audited by BDO Seidman, LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such financial
statements are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the reports of BDO
Seidman, LLP pertaining to such financial statements (to the extent covered by
consents filed with the Securities and Exchange Commission) given upon the
authority of such firm as experts in accounting and auditing.
POSITION OF THE COMMISSION REGARDING INDEMNIFICATION
Our Articles of Incorporation provide for indemnification of officers
and directors.
Insofar as indemnification for liabilities arising under the securities
act might be permitted to directors, officers or persons controlling us under
the provisions described above, we have been informed that in the opinion of the
commission such indemnification is against public policy as expressed in the
securities act and is therefore unenforceable.
8
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by us with the Securities and
Exchange Commission pursuant to the Exchange Act are incorporated herein by
reference:
(a) Our Annual Report on Form 10-KSB for the year ended September 30,
1999 which was filed with the Commission on January 13, 2000.
(b) Our Quarterly Report on Form 10-QSB for the quarterly period ended
December 31, 1999 which was filed with the Commission on February 22, 2000.
(c) Our Quarterly Report on Form 10-QSB for the quarterly period ended
March 31, 1999 which was filed with the Commission on May 15, 2000.
(d) The description of our common stock contained in our registration
statement filed with the Commission under Section 12 of the Exchange Act, as
amended, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all shares offered hereunder have been sold or
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
such documents.
Item 4. Description of Securities.
No description of the class of securities to be offered is required
under this item because the class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Loeb & Loeb LLP has acted as our counsel in connection with this
offering, including the validity of shares that may be offered by this
prospectus. One of the partners of Loeb & Loeb LLP is the beneficial owner of
12,500 shares of our common stock.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code allows for the
indemnification of officers, directors, and corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended. Articles 4 and 5 of Interscience's Articles
of Incorporation provide for indemnification of the directors, officers,
employees and other agents to the extent and under circumstances permitted by
the California Corporations Code.
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE> 12
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No.
-----------
<S> <C>
4.1 2000 Stock Option Plan
4.2 Warrant to Joel Weinberg
4.3 Warrant to Steve Biegenzahn
4.4 Service Agreement between Interscience and Dovel & Lunar, LLP
4.5 Warrant issued to Barry Lederman
4.6 Warrant issued to Neil Murvin
4.7 Warrant issued to Chic Vitagliano
4.8 Warrant issued to Joseph R. Mancuso
4.9 Warrant issued to George Harmon
4.10 Warrant issued to Norman Baker
5.1 Opinion of Loeb & Loeb LLP (including consent)
23.1 Consent of Loeb & Loeb LLP (included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
</TABLE>
Item 9. Undertakings.
(1) We undertake:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do
not apply to the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by us pursuant to Section 13 or Section 15(d) of the
Exchange Act and that are incorporated by reference in this registration
statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered in the amendment, and
the offering of those securities at that time shall be deemed to be the initial
bona fide offering of those securities.
<PAGE> 13
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of this offering.
(2) We also undertake that, for purposes of determining any liability
under the Securities Act, each filing of our annual report pursuant to Section
13(a) or 15(d) of the Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, the Registrant has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by us of expenses incurred or paid by a
director, officer or controlling person in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, we will, unless in the
opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Westlake Village, California on May 12, 2000.
Interscience Computer Corporation
By: /s/ Walter Kornbluh
------------------------------------------
Name: Walter Kornbluh, Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/ Walter Kornbluh Chairman of the Board, May 12, 2000
- ----------------------------- President and Chief
Walter Kornbluh Executive Officer
/s/ Stephen Crosson Chief Operating Officer, May 12, 2000
- ----------------------------- Secretary, Treasurer and
Stephen Crosson Principal Financial and
Accounting Officer
/s/ Stephen Spector Director May 12, 2000
- -----------------------------
Stephen Spector
/s/ Norman Baker Director May 12, 2000
- -----------------------------
Norman Baker
/s/ Robert Pearson Director May 12, 2000
- -----------------------------
Robert Pearson
/s/ Kyo Paul Jhin Director May 12, 2000
- -----------------------------
Kyo Paul Jhin
</TABLE>
<PAGE> 15
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 2000 Stock Option Plan
4.2 Warrant to Joel Weinberg
4.3 Warrant to Steve Biegenzahn
4.4 Service Agreement between Interscience and Dovel & Lunar, LLP
4.5 Warrant issued to Barry Lederman
4.6 Warrant issued to Neil Murvin
4.7 Warrant issued to Chic Vitagliano
4.8 Warrant issued to Joseph R. Mancuso
4.9 Warrant issued to George Harmon
4.10 Warrant issued to Norman Baker
5.1 Opinion of Loeb & Loeb LLP (including consent)
23.1 Consent of Loeb & Loeb LLP (included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
</TABLE>
<PAGE> 1
Exhibit 4.1
INTERSCIENCE COMPUTER CORPORATION
2000 STOCK OPTION PLAN
1. ESTABLISHMENT, PURPOSE AND DEFINITIONS.
(a) The 2000 Stock Option Plan (the "Plan") of Interscience
Computer Corporation, a California corporation (the "Company"), is hereby
adopted. The Plan shall provide for the issuance of incentive stock options
("ISOs") and nonqualified stock options ("NSOs") to purchase the Stock of the
Company.
(b) The purpose of this Plan is to promote the long-term success
of the Company by attracting, motivating and retaining directors, officers and
key employees and consultants of the Company and its Affiliates (the
"Participants") through the use of competitive long-term incentives which are
tied to shareholder value. The Plan seeks to balance Participants' and
shareholder interests by providing incentives to the Participants in the form of
stock options which offer rewards for achieving the long-term strategic and
financial objectives of the Company.
(c) The Plan is intended to provide a means whereby Participants
may be given an opportunity to purchase shares of Stock of the Company pursuant
to (i) options which may qualify as ISOs under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code"), or (ii) NSOs
which may not so qualify.
(d) The term "Affiliates" as used in this Plan means, in the case
of an ISO, parent or subsidiary corporations, as defined in Section 424(e) and
(f) of the Code (but substituting "the Company" for "employer corporation"),
including parents or subsidiaries which become such after adoption of the Plan,
and in all other cases, any entity which is controlled by or which controls the
Company.
2. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Compensation Committee
of the Board of Directors (the "Board") or such other committee appointed by the
Board to administer the Plan (the "Committee") or in the absence of a Committee,
by the Board acting in such capacity.
(b) The Committee may from time to time determine which
Participants (each an "option holder") shall be granted options under the Plan,
the terms thereof (including without limitation determining whether the option
is an ISO and the times at which the options shall become exercisable), and the
number of shares of Common Stock for which an option or options may be granted.
<PAGE> 2
(c) If rights of the Company to repurchase Stock are imposed, the
Board or the Committee may, in its sole discretion, accelerate, in whole or in
part, the time for lapsing of any rights of the Company to repurchase shares of
such Stock or forfeiture restrictions.
(d) If rights of the Company to repurchase Stock are imposed, the
certificates evidencing such shares of Stock awarded hereunder, although issued
in the name of the option holder concerned, shall be held by the Company or a
third party designated by the Committee in escrow subject to delivery to the
option holder or to the Company at such times and in such amounts as shall be
directed by the Board under the terms of this Plan. Share certificates
representing Stock which is subject to repurchase rights shall have imprinted or
typed thereon a legend or legends summarizing or referring to the repurchase
rights.
(e) The Board or the Committee shall have the sole authority, in
its absolute discretion, to adopt, amend and rescind such rules and regulations,
consistent with the provisions of the Plan, as, in its opinion, may be advisable
in the administration of the Plan, to construe and interpret the Plan, the rules
and regulations, and the instruments evidencing options granted under the Plan
and to make all other determinations deemed necessary or advisable for the
administration of the Plan. All decisions, determinations and interpretations of
the Committee shall be binding on all option holders under the Plan.
3. STOCK SUBJECT TO THE PLAN.
(a) "Stock" shall mean the Common Stock of the Company or such
stock as may be changed as contemplated by Section 3(c) below. Stock shall
include shares drawn from either the Company's authorized but unissued shares of
Common Stock or from reacquired shares of Common Stock, including without
limitation shares repurchased by the Company in the open market.
(b) Options may be granted under the Plan from time to time to
eligible persons to purchase an aggregate of up to 1,400,000 shares of Stock.
Stock options awarded pursuant to the Plan which are forfeited, terminated,
surrendered or cancelled for any reason prior to exercise shall again become
available for grants under the Plan (including any option cancelled in
accordance with the cancellation regrant provisions of Section 6(f) herein).
(c) If there shall be any change in the Stock subject to the
Plan, including Stock subject to any option granted hereunder, through merger,
consolidation, recapitalization, reorganization, reincorporation, stock split,
reverse stock split, stock dividend, combination or reclassification of the
Company's Stock or other similar events, an appropriate adjustment shall be made
by the Committee in the number of shares and/or the option price with respect to
any unexercised shares of Stock. Consistent with the foregoing, in the event
that the outstanding Stock is changed into another class or series of capital
stock of the Company, outstanding options to purchase Stock granted under the
Plan shall become options to purchase such other class or series and the
provisions of this Section 3(c) shall apply to such new class or series.
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<PAGE> 3
(d) The Company may grant options under the Plan in substitution
for options held by employees of another company who become employees of the
Company as a result of merger or consolidation. The Company may direct that
substitute options be granted on such terms and conditions as deemed appropriate
by the Board or the Committee.
(e) The aggregate number of shares of Stock approved by the Plan
may not be exceeded without amending the Plan and obtaining shareholder approval
within twelve months of such amendment.
4. ELIGIBILITY.
(a) Persons who shall be eligible to receive stock options
granted under the Plan shall be those Participants referred to in Section 1(b)
above; provided, however, that (i) ISOs may only be granted to employees of the
Company and its Affiliates and (ii) any person holding capital stock possessing
more than 10% of the total combined voting power of all classes of capital stock
of the Company or any Affiliate shall not be eligible to receive ISOs unless the
exercise price per share of Stock is at least 110% of the fair market value of
the Stock on the date the option is granted.
5. EXERCISE PRICE FOR OPTIONS GRANTED UNDER THE PLAN.
(a) All ISOs will have option exercise prices per option share
equal to the fair market value of a share of the Stock on the date the option is
granted, except that in the case of ISOs granted to any person possessing more
than 10% of the total combined voting power of all classes of stock of the
Company or any Affiliate the price shall be not less than 110% of such fair
market value. The option exercise prices per option for NSO's shall be as
determined by the Committee. The price of ISOs or NSOs granted under the Plan
shall be subject to adjustment to the extent provided in Section 3(c) above.
(b) The fair market value on the date of grant shall be
determined based upon the closing price on an exchange on that day or, if the
Stock is not listed on an exchange, on the average of the closing bid and asked
prices in the Over the Counter Market on that day.
6. TERMS AND CONDITIONS OF OPTIONS.
(a) Each option granted pursuant to the Plan shall be evidenced
by a written stock option agreement (the "Option Agreement") executed by the
Company and the person to whom such option is granted. The Option Agreement
shall designate whether the option is an ISO or an NSO.
(b) The term of each ISO and NSO shall be no more than 10 years,
except that the term of each ISO issued to any person possessing more than 10%
of the voting power of all classes of stock of the Company or any Affiliate
shall be no more than 5 years.
3
<PAGE> 4
(c) In the case of ISOs, the aggregate fair market value
(determined as of the time such option is granted) of the Stock to which ISOs
are exercisable for the first time by any individual during any calendar year
(under this Plan and any other plans of the Company or its Affiliates if any)
shall not exceed the amount specified in Section 422(d) of the Internal Revenue
Code, or any successor provision in effect at the time an ISO becomes
exercisable.
(d) The Option Agreement may contain such other terms, provisions
and conditions regarding vesting, repurchase or other similar provisions as may
be determined by the Committee and not inconsistent with this Plan. If an
option, or any part thereof, is intended to qualify as an ISO, the Option
Agreement shall contain those terms and conditions which the Committee determine
are necessary to so qualify under Section 422 of the Internal Revenue Code.
(e) The Committee shall have full power and authority to extend
the period of time for which any option granted under the 2000 Option Plan is to
remain exercisable following the option holder's cessation of service as an
employee or consultant, including without limitation cessation as a result of
death or disability; provided, however, that in no event shall such option be
exercisable after the specified expiration date of the option term.
(f) The Committee shall have full power and authority to effect
at any time and from time to time, with the consent of the affected option
holders, the cancellation of any or all outstanding options under the Plan and
to grant in substitution new options under the Plan covering the same or
different numbers of shares of Stock with the same or different exercise prices.
(g) As a condition to option grants under the Plan, the option
holder agrees to grant the Company the repurchase rights as Company may at its
option require and as may be set forth in the Option Agreement or a separate
repurchase agreement.
(h) Any option granted under the Plan may be subject to a vesting
schedule as provided in the Option Agreement and, except as provided in this
Section 6 herein, only the vested portion of such option may be exercised at any
time during the Option Period. All rights to exercise any option shall lapse and
be of no further effect whatsoever immediately if the option holder's service as
an employee is terminated for "Cause" (as hereinafter defined) or if the option
holder voluntarily terminates the option holder's service as an employee. The
unvested portion of the option will lapse and be of no further effect
immediately upon any termination of employment of the option holder for any
reason. In the remaining cases where the option holder's service as an employee
is terminated or due to death, permanent disability, or is terminated by the
Company (or its Affiliates) without Cause at any time, the vested portion of the
option will extend for a period of three (3) months following the termination of
employment and shall lapse and be of no further force or effect whatsoever only
if it is not exercised before the end of such three (3) month period. There
shall be "Cause" for termination as set forth in any applicable employment or
consulting agreement or, in the absence of such agreement if (i) the option
holder is convicted of a felony, (ii) the option holder engages in any
fraudulent or other dishonest act to the detriment of the Company, (iii) the
option holder fails to report for work on a regular basis, except for periods of
authorized absence or bona fide illness, (iv) the option holder misappropriates
trade secrets, customer lists or other proprietary information belonging to the
4
<PAGE> 5
Company for the option holder's own benefit or for the benefit of a competitor,
(v) the option holder engages in any willful misconduct designed to harm the
Company or its shareholders, or (vi) the option holder fails to perform properly
assigned duties with a failure to cure after 20 days notice.
(i) No fractional shares of Stock shall be issued under the Plan,
whether by initial grants or any adjustments to the Plan.
7. USE OF PROCEEDS.
(a) Cash proceeds realized from the sale of Stock under the Plan
shall constitute general funds of the Company.
8. AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN.
(a) The Board may at any time suspend or terminate the Plan, and
may amend it from time to time in such respects as the Board may deem advisable
provided that (i) such amendment, suspension or termination complies with all
applicable state and federal requirements and requirements of any stock exchange
on which the Stock is then listed, including any applicable requirement that the
Plan or an amendment to the Plan be approved by the shareholders. The Plan shall
terminate on the earlier of (i) ten (10) years from December 8, 1999 or (ii) the
date on which no additional shares of Stock are available for issuance under the
Plan.
(b) No option may be granted during any suspension or after the
termination of the Plan, and no amendment, suspension or termination of the Plan
shall, without the option holder's consent, alter or impair any rights or
obligations under any option granted under the Plan.
(c) The Committee, with the consent of affected option holders,
shall have the authority to cancel any or all outstanding options under the Plan
and grant new options having an exercise price which may be higher or lower than
the exercise price of cancelled options.
9. ASSIGNABILITY OF OPTIONS AND RIGHTS.
(a) Subject to Subparagraph (b), no Option issued under the Plan
shall be assignable or transferable by an option holder other than by will or
the laws of descent and distribution. An Option awarded to an option holder
during such option holder's lifetime shall be exercisable only by an option
holder or his or her guardian or legal representation.
(b) Notwithstanding Subparagraph (a), in the case of an NSO, an
option holder shall be permitted to transfer the Option to the option holder's
spouse, adult lineal descendants, adult spouses of adult lineal descendants and
trusts for the benefit of the option holder's minor or adult lineal descendants
(a "Related Transferee") if the Option Agreement under which the Option is
granted so specifies. If the Option is transferred to a Related Transferee
pursuant to the preceding sentence, the Related Transferee shall, upon exercise
of the Option, hold the Stock subject to all the provisions of the transferor's
Option Agreement in the
5
<PAGE> 6
same manner as the transferor and shall execute and deliver to the Company such
instruments as the Company shall require to evidence the same.
10. PAYMENT UPON EXERCISE.
(a) Payment of the purchase price upon exercise of any option or
right to purchase Stock granted under this Plan shall be made by giving the
Company written notice of such exercise, specifying the number of such shares of
Stock as to which the option is exercised. Such notice shall be accompanied by
payment of an amount equal to the Option Price of such shares of Stock. Such
payment may be (i) cash, (ii) by check drawn against sufficient funds, (iii) at
the Committee's discretion, by delivery to the Company of the option holder's
promissory note, (iv) such other consideration as the Committee, in its sole
discretion, determines and is consistent with the Plan's purpose and applicable
law, or (v) any combination of the foregoing. Any Stock used to exercise options
to purchase Stock (including Stock withheld upon the exercise of an option to
pay the purchase price of the shares of Stock as to which the option is
exercised) shall be valued in accordance with procedures established by the
Committee. Any promissory note used to exercise options to purchase Stock shall
be a full recourse, interest-bearing obligation secured by Stock in the Company
being purchased and containing such terms as the Committee shall determine. If a
promissory note is used to exercise options the option holder agrees to execute
such further documents as the Company may deem necessary or appropriate in
connection with issuing the promissory note, perfecting a security interest in
the stock purchased with the promissory note and any related terms the Company
may propose. Such further documents may include, without limitation, a security
agreement and an assignment separate from certificate. If accepted by the
Committee in its discretion, such consideration also may be paid through a
broker-dealer sale and remittance procedure pursuant to which the option holder
(I) shall provide irrevocable written instructions to a designated brokerage
firm to effect the immediate sale of the purchased Stock and remit to the
Company, out of the sale proceeds available on the settlement date, sufficient
funds to cover the aggregate option price payable for the purchased Stock plus
all applicable Federal and State income and employment taxes required to be
withheld by the Company in connection with such purchase and (II) shall provide
written directives to the Company to deliver the certificates for the purchased
Stock directly to such brokerage firm in order to complete the sale transaction.
11. WITHHOLDING TAXES.
(a) Shares of Stock issued hereunder shall be delivered to an
option holder only upon payment by such person to the Company of the amount of
any withholding tax required by applicable federal, state, local or foreign law.
The Company shall not be required to issue any Stock to an option holder until
such obligations are satisfied.
(b) The Committee may, under such terms and conditions as it
deems appropriate, authorize an option holder to satisfy withholding tax
obligations under this Section 11 by surrendering a portion of any Stock
previously issued to the option holder or by electing to have the Company
withhold shares of Stock from the Stock to be issued to the option holder, in
each case having a fair market value equal to the amount of the withholding tax
required to be withheld.
6
<PAGE> 7
12. CORPORATE TRANSACTIONS.
(a) For the purpose of this Section 12, a "Corporate Transaction"
shall include any of the following shareholder-approved transactions to which
the Company is a party:
(i) a merger or consolidation in which the Company is not
the surviving entity, except for a transaction the principal purpose of which is
to change the State of the Company's incorporation; or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company in liquidation or dissolution of
the Company.
(b) Upon the occurrence of a Corporate Transaction, if the
surviving corporation or the purchaser, as the case may be, does not assume the
obligations of the Company under the Plan, then irrespective of the vesting
provisions contained in individual option agreements, all outstanding options
shall become immediately exercisable in full and each option holder will be
afforded an opportunity to exercise their options prior to the consummation of
the merger or sale transaction so that they can participate on a pro rata basis
in the transaction based upon the number of shares of Stock purchased by them on
exercise of options if they so desire. To the extent that the Plan is unaffected
and assumed by the successor corporation or its parent company a Corporate
Transaction will have no effect on outstanding options and the options shall
continue in effect according to their terms.
(c) Each outstanding option under this Plan which is assumed in
connection with the Corporate Transaction or is otherwise to continue in effect
shall be appropriately adjusted, immediately after such Corporate Transaction,
to apply and pertain to the number and class of securities which would have been
issued to the option holder in connection with the consummation of such
Corporate Transaction had such person exercised the option immediately prior to
such Corporate Transaction. Appropriate adjustments shall also be made to the
option price payable per share, provided the aggregate option price payable for
such securities shall remain the same. In addition, the class and number of
securities available for issuance under this Plan following the consummation of
the Corporate Transaction shall be appropriately adjusted.
(d) The grant of options under this Plan shall in no way affect
the right of the Company to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
7
<PAGE> 8
13. LOANS OR GUARANTEE OF LOANS.
(a) The Committee may, in its discretion, assist any option
holder in the exercise of options granted under this Plan, including the
satisfaction of any income and employment tax obligations arising therefrom by
(i) authorizing the extension of a loan from the Company to such option holder,
(ii) permitting the option holder to pay the exercise price for the Stock in
installments over a period of years or (iii) authorizing a guarantee by the
Company of a third party loan to the option holder. The terms of any loan,
installment method of payment or guarantee (including the interest rate and
terms of repayment) will be upon such terms as the Committee specifies in the
applicable option or issuance agreement or otherwise deems appropriate under the
circumstances. Loans, installment payments and guarantees may be granted with or
without security or collateral (other than to option holders who are not
employees, in which event the loan must be adequately secured by collateral
other than the purchased Stock). However, the maximum credit available to the
option holder may not exceed the exercise or purchase price of the acquired
shares of Stock plus any Federal and State income and employment tax liability
incurred by the option holder in connection with the acquisition of such shares
of Stock.
(b) The Committee may, in its absolute discretion, determine that
one or more loans extended under this financial assistance program shall be
subject to forgiveness by the Company in whole or in part upon such terms and
conditions as the Committee may deem appropriate.
14. REGULATORY APPROVALS.
(a) The obligation of the Company with respect to Stock issued
under the Plan shall be subject to all applicable laws, rules and regulations
and such approvals by any governmental agencies or stock exchanges as may be
required. The Company reserves the right to restrict, in whole or in part, the
delivery of Stock under the Plan until such time as any legal requirements or
regulations have been met relating to the issuance of Stock, to their
registration or qualification under the Securities Exchange Act of 1934, if
applicable, or any applicable state securities laws, or to their listing on any
stock exchange at which time such listing may be applicable.
15. NO EMPLOYMENT/SERVICE RIGHTS.
(a) Neither the action of the Company in establishing this Plan,
nor any action taken by the Board or the Committee hereunder, nor any provision
of this Plan shall be construed so as to grant any individual the right to
remain in the employ or service of the Company (or any parent, subsidiary or
affiliated corporation) for any period of specific duration, and the Company (or
any parent, subsidiary or affiliated corporation retaining the services of such
individual) may terminate or change the terms of such individual's employment or
service at any time and for any reason, with or without cause.
8
<PAGE> 9
16. MARKET STANDOFF
(a) In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the Securities Act, a person shall not sell, make any short sale of,
loan, hypothecate, pledge, grant any option for the purchase of, or otherwise
dispose of or transfer for value or otherwise agree to engage in any of the
foregoing transactions with respect to any shares issued pursuant to an Option
granted under the Plan without prior written consent of the Company or its
underwriters. Such limitations shall be in effect for such period of time as may
be requested by the Company or such underwriters and agreed to by the Company's
officers and directors with respect to their shares; provided, however, that in
no event shall such period exceed 180 days. Holders of shares issued pursuant to
an Option granted under the Plan shall be subject to the market standoff
provisions of this paragraph only if the officers and directors of the Company
are also subject to similar arrangements.
(b) In the event of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the Company's outstanding Common Stock effected as a class without the
Company's receipt of consideration, any new, substituted or additional
securities distributed with respect to the purchased shares shall be immediately
subject to the provisions of this Section 16, to the same extent the purchased
shares are at such time covered by such provisions.
(c) In order to enforce the limitations of this Section 16, the
Company may impose stop-transfer instructions with respect to the purchased
shares until the end of the applicable standoff period.
17. MISCELLANEOUS PROVISIONS.
(a) The provisions of this Plan shall be governed by the laws of
the State of California, as such laws are applied to contracts entered into and
performed in such State, without regard to its rules concerning conflicts of
law.
(b) The provisions of this Plan shall inure to the benefit of,
and be binding upon, the Company and its successors or assigns, whether by
Corporate Transaction or otherwise, and the option holders, the legal
representatives of their respective estates, their respective heirs or legatees
and their permitted assignees.
(c) The option holders shall have no divided rights, voting
rights or any other rights as a shareholder with respect to any options under
the Plan prior to the issuance of a stock certificate for such Stock.
(d) With respect to grants to non-U.S. residents, options may be
granted hereunder which may vary from the terms of the Plan but which are
consistent with the terms hereof to the extent necessary or appropriate to
comply with foreign laws including but not limited to tax laws.
9
<PAGE> 10
APPENDIX A FOR CALIFORNIA RESIDENTS
This Appendix to the Interscience Computer Corporation Stock
Option Plan (the "Plan") shall have application only to Participants who are
residents of the State of California. Capitalized terms contained herein shall
have the same meaning given to them in the Plan, unless otherwise provided in
this Appendix. NOTWITHSTANDING ANY PROVISION CONTAINED IN THE PLAN TO THE
CONTRARY AND TO THE EXTENT REQUIRED BY APPLICABLE LAW, THE FOLLOWING TERMS AND
CONDITIONS SHALL APPLY TO ALL OPTIONS GRANTED TO RESIDENTS OF THE STATE OF
CALIFORNIA, UNTIL SUCH TIME AS THE COMMON STOCK BECOMES A "LISTED SECURITY"
UNDER THE SECURITIES ACT:
1. Nonqualified Stock Options shall have an exercise price that is not
less than 85% of the Fair Market Value of the stock at the time the Option is
granted, as determined by the Board, except that the exercise price shall be
110% of the Fair Market Value in the case of any person who owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or its parent or subsidiary corporations.
2. Options shall have a term of not more than ten years from the date
the Option is granted.
3. Options shall be nontransferable other than by will or the laws of
descent and distribution. Notwithstanding the foregoing, and to the extent
permitted by Section 422 of the Code, the Committee, in its discretion, may
permit distribution of an Option to an inter vivos or testamentary trust in
which the Option is to be passed to beneficiaries upon the death of the trustor
(settlor), or by gift to "immediate family" as that term is defined in Rule
16a-1(e) of the Exchange Act.
4. Options shall become exercisable at the rate of at least 20% per year
over five years from the date of the Option is granted, subject to reasonable
conditions such as continued employment. However, in the case of an Option
granted to officers, directors or consultants of the Company or any of its
affiliates, the Option may become fully exercisable, subject to reasonable
conditions such as continued employment, at any time or during any period
established by the Company or any of its affiliates.
5. Unless employment is terminated for Cause, the right to exercise an
Option in the event of termination of employment, to the extent that the
Participant is otherwise entitled to exercise an Option on the date employment
terminates, shall be:
a. at least six months from the date of termination of employment
if termination was caused by death or disability;
b. at least 30 days from the date of termination if termination
of employment was caused by other than death or disability; and
c. but in no event later than the remaining term of the Option.
6. No Option may be granted to a resident of California more than ten
years after the earlier of the date of adoption of the Plan and the date the
Plan is approved by the shareholders.
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<PAGE> 11
7. Any Option exercised before shareholder approval is obtained shall be
rescinded if shareholder approval is not obtained within 12 months before or
after the Plan. Such shares shall not be counted in determining whether such
approval is obtained
8. The Company shall provide annual financial statements of the Company
to each California resident holding an outstanding Option under the Plan. Such
financial statements need not be audited and need not be issued to key employees
whose duties at the Company assure them access to equivalent information.
11
<PAGE> 1
EXHIBIT 4.2
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
WARRANT FOR THE PURCHASE
OF
40,000 SHARES OF COMMON STOCK, WITHOUT PAR VALUE
APRIL 18, 1998
THIS CERTIFIES that, for value received, JOEL WEINBERG (together with
all permitted assigns, the "Holder") is entitled to subscribe for, and purchase
from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on April 18, 1998 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the second anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $1.00 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to that certain Plan of
Reorganization of the Company.
<PAGE> 2
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT.
This Warrant may be exercised during the Exercise Period, either in
whole or in part, by the surrender of this Warrant (with the election at the end
hereof duly executed) to the Company at its office at 5236 Colodny Drive, Suite
100, Agoura Hills, California 91301, or at such other place as is designated in
writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the product of the
Exercise Price and the number of Warrant Shares for which this Warrant is being
exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES.
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing the Warrant
Shares issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a Warrant
evidencing the right of the Holder to purchase the balance of the aggregate
number of Warrant Shares purchasable hereunder as to which this Warrant has not
been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE.
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have
2
<PAGE> 3
no obligation to cause Warrants to be transferred on its books to any person if,
in the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES.
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are duly
authorized and, upon receipt by the Company of the full payment for such Warrant
Shares, will be validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof and will not be issued in
violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION.
(a) In the event that the Company shall at any time after the
Initial Exercise Date (i) declare a dividend on the outstanding Common Stock
payable in shares of its capital stock, (ii) subdivide the outstanding Common
Stock; (iii) combine the outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price per Warrant Share in effect at the time
of the record date for the determination of shareholders entitled to receive
such dividend or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it shall equal the
price determined by multiplying such Exercise Price by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be the number of shares
of Common Stock outstanding after giving effect to such action. Such adjustment
shall be made successively whenever any event listed above shall occur and shall
become effective at the close of business on such record date or at the close of
business on the date immediately preceding such effective date, as applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the Warrant Shares, if any, issuable upon such exercise over
and above the number of Warrant Shares issuable upon such exercise on the basis
of the number of shares of Common Stock in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due bill or
other appropriate instrument evidencing the Holder's right to receive such
additional shares of Common Stock upon the occurrence of the event requiring
such adjustment.
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<PAGE> 4
(d) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall within 15 days thereafter cause written notice
thereof to be sent by registered mail, postage prepaid, to the Holder, at its
address as it shall appear in the Warrant Register, which notice shall be
accompanied by an officer's certificate setting forth the number of Warrant
Shares issuable and the Exercise Price thereof after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive evidence of
the correctness of any such adjustment absent manifest error.
(e) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
average closing sale price (or average of the closing bid and asked prices, if
closing sale price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided, however, that any
adjustments which by reason of this Section 5 are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subsection (a) above, the number of Warrant
Shares issuable upon exercise of this Warrant shall simultaneously be adjusted
by multiplying the number of Warrant Shares theretofore issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER.
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or merger of the
Company with or into another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in
any reclassification of the outstanding shares of Common Stock or the conversion
of such outstanding shares of Common Stock into shares of other stock or other
securities or property), or in the case of any sale, lease, or conveyance to
another corporation of the property and assets of any nature of the Company as
an entirety or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of this Warrant (in lieu of the number of Warrant
Shares theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the respective number of Warrant
Shares which would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this Warrant had
been exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any
4
<PAGE> 5
shares or other property thereafter deliverable upon exercise of this Warrant.
Any such adjustment shall be made by, and set forth in, a supplemental agreement
between the Company, or any successor thereto, and the Holder, with respect to
this Warrant, and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization
unless, upon or prior to the consummation thereof, the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in accordance with
the foregoing provisions. In the event of sale, lease, or conveyance or other
transfer of all or substantially all of the assets of the Company as part of a
plan for liquidation of the Company, all rights to exercise this Warrant shall
terminate 30 days after the Company gives written notice to the Holder that such
sale or conveyance or other transfer has been consummated.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from a specified par value to no par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
in the shares into two or more classes or series of shares), the Holder or
holders of this Warrant shall have the right thereafter to receive upon exercise
of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of
Warrant Shares for which this Warrant might have been exercised immediately
prior to such reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall be as nearly
equivalent as practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS.
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
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<PAGE> 6
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares
of Common Stock or any consolidation, merger, sale, lease, or conveyance of
property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give written
notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS.
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
6
<PAGE> 7
SECTION 10 LEGEND.
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS.
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW.
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
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<PAGE> 8
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
---------------------------------------
Walter Kornblau
President and Chief Executive Officer
[Seal]
- ----------------------------------
Secretary
8
<PAGE> 9
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ______________________ hereby sells, assigns, and
transfers unto _________________ a Warrant to purchase __________ shares of
Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint ___________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated: _________________
Signature __________________________
9
<PAGE> 10
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
10
<PAGE> 11
ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated: __________________ Name _______________________________
(Print)
Address:
_________________________
_________________________
____________________________________
(Signature)
11
<PAGE> 1
EXHIBIT 4.3
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
WARRANT FOR THE PURCHASE
OF
10,000 SHARES OF COMMON STOCK, WITHOUT PAR VALUE
APRIL 18, 1998
THIS CERTIFIES that, for value received, STEVE BIEGENZAHN (together with
all permitted assigns, the "Holder") is entitled to subscribe for, and purchase
from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on April 18, 1998 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the second anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $1.00 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to that certain Plan of
Reorganization of the Company.
<PAGE> 2
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT.
This Warrant may be exercised during the Exercise Period, either in
whole or in part, by the surrender of this Warrant (with the election at the end
hereof duly executed) to the Company at its office at 5236 Colodny Drive, Suite
100, Agoura Hills, California 91301, or at such other place as is designated in
writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the product of the
Exercise Price and the number of Warrant Shares for which this Warrant is being
exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES.
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing the Warrant
Shares issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a Warrant
evidencing the right of the Holder to purchase the balance of the aggregate
number of Warrant Shares purchasable hereunder as to which this Warrant has not
been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE.
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have
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<PAGE> 3
no obligation to cause Warrants to be transferred on its books to any person if,
in the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES.
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are duly
authorized and, upon receipt by the Company of the full payment for such Warrant
Shares, will be validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof and will not be issued in
violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION.
(a) In the event that the Company shall at any time after the
Initial Exercise Date (i) declare a dividend on the outstanding Common Stock
payable in shares of its capital stock, (ii) subdivide the outstanding Common
Stock; (iii) combine the outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price per Warrant Share in effect at the time
of the record date for the determination of shareholders entitled to receive
such dividend or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it shall equal the
price determined by multiplying such Exercise Price by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be the number of shares
of Common Stock outstanding after giving effect to such action. Such adjustment
shall be made successively whenever any event listed above shall occur and shall
become effective at the close of business on such record date or at the close of
business on the date immediately preceding such effective date, as applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the Warrant Shares, if any, issuable upon such exercise over
and above the number of Warrant Shares issuable upon such exercise on the basis
of the number of shares of Common Stock in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due bill or
other appropriate instrument evidencing the Holder's right to receive such
additional shares of Common Stock upon the occurrence of the event requiring
such adjustment.
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<PAGE> 4
(d) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall within 15 days thereafter cause written notice
thereof to be sent by registered mail, postage prepaid, to the Holder, at its
address as it shall appear in the Warrant Register, which notice shall be
accompanied by an officer's certificate setting forth the number of Warrant
Shares issuable and the Exercise Price thereof after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive evidence of
the correctness of any such adjustment absent manifest error.
(e) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
average closing sale price (or average of the closing bid and asked prices, if
closing sale price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided, however, that any
adjustments which by reason of this Section 5 are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subsection (a) above, the number of Warrant
Shares issuable upon exercise of this Warrant shall simultaneously be adjusted
by multiplying the number of Warrant Shares theretofore issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER.
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or merger of the
Company with or into another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in
any reclassification of the outstanding shares of Common Stock or the conversion
of such outstanding shares of Common Stock into shares of other stock or other
securities or property), or in the case of any sale, lease, or conveyance to
another corporation of the property and assets of any nature of the Company as
an entirety or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of this Warrant (in lieu of the number of Warrant
Shares theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the respective number of Warrant
Shares which would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this Warrant had
been exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any
4
<PAGE> 5
shares or other property thereafter deliverable upon exercise of this Warrant.
Any such adjustment shall be made by, and set forth in, a supplemental agreement
between the Company, or any successor thereto, and the Holder, with respect to
this Warrant, and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization
unless, upon or prior to the consummation thereof, the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in accordance with
the foregoing provisions. In the event of sale, lease, or conveyance or other
transfer of all or substantially all of the assets of the Company as part of a
plan for liquidation of the Company, all rights to exercise this Warrant shall
terminate 30 days after the Company gives written notice to the Holder that such
sale or conveyance or other transfer has been consummated.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from a specified par value to no par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
in the shares into two or more classes or series of shares), the Holder or
holders of this Warrant shall have the right thereafter to receive upon exercise
of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of
Warrant Shares for which this Warrant might have been exercised immediately
prior to such reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall be as nearly
equivalent as practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS.
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
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<PAGE> 6
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares
of Common Stock or any consolidation, merger, sale, lease, or conveyance of
property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give written
notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS.
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
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<PAGE> 7
SECTION 10 LEGEND.
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS.
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW.
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
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<PAGE> 8
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
---------------------------------------
Walter Kornblau
President and Chief Executive Officer
[Seal]
- ----------------------------------
Secretary
8
<PAGE> 9
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ______________________ hereby sells, assigns, and
transfers unto _________________ a Warrant to purchase __________ shares of
Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint ___________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated: _________________
Signature __________________________
9
<PAGE> 10
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
10
<PAGE> 11
ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated: __________________ Name _______________________________
(Print)
Address:
_________________________
_________________________
____________________________________
(Signature)
11
<PAGE> 1
EXHIBIT 4.4
January 2, 2000
Walter Kornbluh
Steve Crosson
Interscience Computer Corporation
600 Hampshire Road, Suite 105
Westlake Village, CA 91361
Re: Siemens Litigation
Walter and Steve:
This letter confirms the compromise agreement that Interscience
reached with its litigation counsel, concerning the attorneys fees relating to
Interscience's settlement with Oce.
Interscience agreed to compensate its attorneys as follows:
1. a cash payment of $75,694.45 (constituting a $100,000 cash
fee less a $24,305.55 credit based on the attorneys fees
compromise from Interscience's settlement with NCR);
2. 40,000 shares of free trading Interscience stock. All
stock should be issued to Dovel & Luner, LLP. (Dovel &
Luner is paying out Lawson, Weiss & Danziger and Battaglia
Ross Dicus & Wein's interest in cash.)
As we hope to settle this compensation as soon as possible,
please let us know what you need from us, if anything, to proceed. Thank you
again for your continuous cooperation in this matter.
Very truly yours,
Sean Luner
cc: Steve Wein (via Fax (727) 343-4059)
Rod De Llano (via Fax (713) 222-8866)
<PAGE> 1
EXHIBIT 4.5
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
Warrant for the Purchase
of 12,500
Shares of Common Stock, Without Par Value
THIS CERTIFIES that, for value received, Barry Lederman, (together with
all permitted assigns, the "Holder") is entitled to subscribe for, and purchase
from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on September 17, 1999 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the third anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $0.50 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to employment with Company as a
signing bonus.
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT
This Warrant may be exercised during the Exercise Period, either in whole or in
part, by the surrender of this Warrant (with the election at the end hereof duly
executed) to the Company at its office at 5236 Colodny Drive, Suite 100, Agoura
Hills, California 91301, or at such other place as is designated in writing by
the Company, together with a certified or bank cashier's
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<PAGE> 2
check payable to the order of the Company in an amount equal to the product of
the Exercise Price and the number of Warrant Shares for which this Warrant is
being exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing in the name
of the Holder or its designee. If this Warrant should be exercised in part only,
the Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a Warrant evidencing the right of the Holder to purchase the balance of
the aggregate number of Warrant Shares purchasable hereunder as to which this
Warrant has not been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Warrants to be transferred on its books to any person if, in
the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are
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<PAGE> 3
duly authorized and, upon receipt by the Company of the full payment for such
Warrant Shares, will be validly issued, fully paid, and nonassessable, without
any personal liability attaching to the ownership thereof and will not be issued
in violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION
(a) In the event that the Company shall at any time after the Initial
Exercise Date (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common
Stock into a smaller number of share; or (iv) issue any shares of
its capital stock by reclassification of the Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), then, in each case, the Exercise Price per Warrant
Share in effect at the time of the record date for the
determination of shareholders entitled to receive such dividend
or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it
shall equal the price determined by multiplying such Exercise
Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
action, and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such
action. Such adjustment shall be made successively whenever any
event listed above shall occur and shall become effective at the
close of business on such record date or at the close of business
on the date immediately preceding such effective date as
applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the
case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as
of a record date for a specified event, the Company may elect to
defer, until the occurrence of such event, issuing to the Holder,
if the Holder exercised this Warrant after such record date, the
Warrant Shares, if any, issuable upon such exercise over and
above the number of Warrant Shares issuable upon such exercise on
the basis of the number of shares of Common Stock in effect prior
to such adjustment; provided, however, that the Company shall
deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder's right to receive such additional shares
of Common Stock upon the occurrence of the event requiring such
adjustment.
(d) Whenever there shall be an adjustment as provided in this Section
5, the Company shall within 15 days thereafter cause written
notice thereof to be sent by registered mail, postage prepaid, to
the Holder, at its address as it shall appear in the Warrant
Register, which notice shall be accompanied by an officer's
certificate setting forth the number of Warrant Shares issuable
and the Exercise Price thereof after such adjustment and setting
forth the computation thereof, which officer's certificate shall
be conclusive evidence of the correctness of any such adjustment
absent manifest error.
(e) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the
exercise of this Warrant. If any
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<PAGE> 4
faction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the
Company shall purchase such fraction for an amount in cash equal
to the same fraction of the average closing sale price (or
average of the closing bid and asked prices, if closing sale
price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided,
however, that any adjustments which by reason of this Section 5
are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this Warrant
is adjusted pursuant to subsection (a) above, the number of
Warrant Shares issuable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of Warrant
Shares theretofore issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or
merger of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock into shares
of other stock or other securities or property), or in the case
of any sale, lease, or conveyance to another corporation of the
property and assets of any nature of the Company as an entirety
or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall
thereafter be deliverable upon exercise of this Warrant (in lieu
of the number of Warrant Shares theretofore deliverable) the
number of shares of stock or other securities or property to
which a holder of the respective number of Warrant Shares which
would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this
Warrant had been exercised in full immediately prior to such
Reorganization. In case of any Reorganization, appropriate
adjustment, as determined in good faith by the Board of Directors
of the Company, shall be made in the application of the
provisions herein set forth with respect to the rights and
interests of the Holder so that the provisions set forth herein
shall thereafter be applicable, as nearly as possible, in
relation to any shares or other property thereafter deliverable
upon exercise of this Warrant. Any such adjustment shall be made
by, and set forth in, a supplemental agreement between the
Company, or any successor thereto, and the Holder, with respect
to this Warrant, and shall for all purposes hereof conclusively
be deemed to be an appropriate adjustment. The Company shall not
effect any such Reorganization unless, upon or prior to the
consummation thereof, the successor corporation, or if the
Company shall be the surviving corporation in any such
Reorganization and is not the issuer of the shares of stock or
other
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<PAGE> 5
securities or property to be delivered to holders of shares of
the Common Stock outstanding at the effective time thereof, then
such issuer, shall assume by written instrument the obligation to
deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in
accordance with the foregoing provision. In the event of sale,
lease, or conveyance or other transfer of all or substantially
all of the assets of the Company as part of a plan for
liquidation of the Company, all rights to exercise this Warrant
shall terminate 30 days after the Company gives written notice to
the Holder that such sale or conveyance or other transfer has
been consummated.
(b) In case of any reclassification or change of the shares of Common
Stock issuable upon exercise of this Warrant (other than a change
in par value or from a specified par value to not par value, or
as a result of a subdivision or combination, but including any
change in the shares into two or more classes or series of
shares), or in case of any consolidation or merger of another
corporation into the Company in which the Company is the
continuing corporation and in which there is a reclassification
or change (including a change to the right to receive cash or
other property) of the shares of Common Stock (other than a
change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but
including any change in the shares into two or more classes or
series of shares), the Holder or holders of this Warrant shall
have the right thereafter to receive upon exercise of this
Warrant solely the property, cash, or any combination thereof
receivable upon such reclassification, change, consolidation, or
merger by a holder of the number of Warrant Shares for which this
Warrant might have been exercised immediately prior to such
reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall
be as nearly equivalent as practicable to the adjustments in
Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common
Stock and to successive consolidations, mergers, sales, leases,
or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution
(other than regularly scheduled cash dividends which are not in a
greater amount per share than the most recent such cash dividend)
to all holders of Common Stock; or
(b) to issue any rights, warrants, or other securities to all holders
of Common Stock entitling them to purchase any additional shares
of Common Stock or any other rights, warrants, or other
securities; or
(c) to effect any reclassification or change of outstanding shares of
Common Stock or any consolidation, merger, sale, lease, or
conveyance of property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
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<PAGE> 6
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give
written notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
SECTION 10 LEGEND
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
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THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY
RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL
AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY
BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:_____________________________________
Walter Kornbluh
President and Chief Executive Officer
[Seal]
__________________________________
Secretary
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ____________________ hereby sells, assigns, and
transfers unto ______________________ a Warrant to purchase _____________ shares
of Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint _________________ attorney to transfer such Warrant on the books of
the Company, with full power of substitution.
Dated:________________________
Signature:________________________________
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NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
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<PAGE> 10
ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____________ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated:___________________________ Name:______________________________
(Print)
Address:
_________________________________
_________________________________ ______________________________
(Signature)
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<PAGE> 1
EXHIBIT 4.6
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
Warrant for the Purchase
of 12,500
Shares of Common Stock, Without Par Value
THIS CERTIFIES that, for value received, Neil Murvin, (together with
all permitted assigns, the "Holder") is entitled to subscribe for, and purchase
from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on September 17, 1999 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the third anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $0.50 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to employment with Company as a
signing bonus.
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT
This Warrant may be exercised during the Exercise Period, either in whole or in
part, by the surrender of this Warrant (with the election at the end hereof duly
executed) to the Company at its office at 5236 Colodny Drive, Suite 100, Agoura
Hills, California 91301, or at such other place as is designated in writing by
the Company, together with a certified or bank cashier's
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check payable to the order of the Company in an amount equal to the product of
the Exercise Price and the number of Warrant Shares for which this Warrant is
being exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing in the name
of the Holder or its designee. If this Warrant should be exercised in part only,
the Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a Warrant evidencing the right of the Holder to purchase the balance of
the aggregate number of Warrant Shares purchasable hereunder as to which this
Warrant has not been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Warrants to be transferred on its books to any person if, in
the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder. .
SECTION 4 RESERVATION OF SHARES
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are
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<PAGE> 3
duly authorized and, upon receipt by the Company of the full payment for such
Warrant Shares, will be validly issued, fully paid, and nonassessable, without
any personal liability attaching to the ownership thereof and will not be issued
in violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION
(a) In the event that the Company shall at any time after the Initial
Exercise Date (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common
Stock into a smaller number of share; or (iv) issue any shares of
its capital stock by reclassification of the Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), then, in each case, the Exercise Price per Warrant
Share in effect at the time of the record date for the
determination of shareholders entitled to receive such dividend
or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it
shall equal the price determined by multiplying such Exercise
Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
action, and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such
action. Such adjustment shall be made successively whenever any
event listed above shall occur and shall become effective at the
close of business on such record date or at the close of business
on the date immediately preceding such effective date as
applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the
case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as
of a record date for a specified event, the Company may elect to
defer, until the occurrence of such event, issuing to the Holder,
if the Holder exercised this Warrant after such record date, the
Warrant Shares, if any, issuable upon such exercise over and
above the number of Warrant Shares issuable upon such exercise on
the basis of the number of shares of Common Stock in effect prior
to such adjustment; provided, however, that the Company shall
deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder's right to receive such additional shares
of Common Stock upon the occurrence of the event requiring such
adjustment.
(d) Whenever there shall be an adjustment as provided in this Section
5, the Company shall within 15 days thereafter cause written
notice thereof to be sent by registered mail, postage prepaid, to
the Holder, at its address as it shall appear in the Warrant
Register, which notice shall be accompanied by an officer's
certificate setting forth the number of Warrant Shares issuable
and the Exercise Price thereof after such adjustment and setting
forth the computation thereof, which officer's certificate shall
be conclusive evidence of the correctness of any such adjustment
absent manifest error.
(e) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the
exercise of this Warrant. If any
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<PAGE> 4
faction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the
Company shall purchase such fraction for an amount in cash equal
to the same fraction of the average closing sale price (or
average of the closing bid and asked prices, if closing sale
price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided,
however, that any adjustments which by reason of this Section 5
are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this Warrant
is adjusted pursuant to subsection (a) above, the number of
Warrant Shares issuable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of Warrant
Shares theretofore issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or
merger of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock into shares
of other stock or other securities or property), or in the case
of any sale, lease, or conveyance to another corporation of the
property and assets of any nature of the Company as an entirety
or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall
thereafter be deliverable upon exercise of this Warrant (in lieu
of the number of Warrant Shares theretofore deliverable) the
number of shares of stock or other securities or property to
which a holder of the respective number of Warrant Shares which
would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this
Warrant had been exercised in full immediately prior to such
Reorganization. In case of any Reorganization, appropriate
adjustment, as determined in good faith by the Board of Directors
of the Company, shall be made in the application of the
provisions herein set forth with respect to the rights and
interests of the Holder so that the provisions set forth herein
shall thereafter be applicable, as nearly as possible, in
relation to any shares or other property thereafter deliverable
upon exercise of this Warrant. Any such adjustment shall be made
by, and set forth in, a supplemental agreement between the
Company, or any successor thereto, and the Holder, with respect
to this Warrant, and shall for all purposes hereof conclusively
be deemed to be an appropriate adjustment. The Company shall not
effect any such Reorganization unless, upon or prior to the
consummation thereof, the successor corporation, or if the
Company shall be the surviving corporation in any such
Reorganization and is not the issuer of the shares of stock or
other
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securities or property to be delivered to holders of shares of
the Common Stock outstanding at the effective time thereof, then
such issuer, shall assume by written instrument the obligation to
deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in
accordance with the foregoing provision. In the event of sale,
lease, or conveyance or other transfer of all or substantially
all of the assets of the Company as part of a plan for
liquidation of the Company, all rights to exercise this Warrant
shall terminate 30 days after the Company gives written notice to
the Holder that such sale or conveyance or other transfer has
been consummated.
(b) In case of any reclassification or change of the shares of Common
Stock issuable upon exercise of this Warrant (other than a change
in par value or from a specified par value to not par value, or
as a result of a subdivision or combination, but including any
change in the shares into two or more classes or series of
shares), or in case of any consolidation or merger of another
corporation into the Company in which the Company is the
continuing corporation and in which there is a reclassification
or change (including a change to the right to receive cash or
other property) of the shares of Common Stock (other than a
change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but
including any change in the shares into two or more classes or
series of shares), the Holder or holders of this Warrant shall
have the right thereafter to receive upon exercise of this
Warrant solely the property, cash, or any combination thereof
receivable upon such reclassification, change, consolidation, or
merger by a holder of the number of Warrant Shares for which this
Warrant might have been exercised immediately prior to such
reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall
be as nearly equivalent as practicable to the adjustments in
Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common
Stock and to successive consolidations, mergers, sales, leases,
or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution
(other than regularly scheduled cash dividends which are not in a
greater amount per share than the most recent such cash dividend)
to all holders of Common Stock; or
(b) to issue any rights, warrants, or other securities to all holders
of Common Stock entitling them to purchase any additional shares
of Common Stock or any other rights, warrants, or other
securities; or
(c) to effect any reclassification or change of outstanding shares of
Common Stock or any consolidation, merger, sale, lease, or
conveyance of property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
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(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give
written notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
SECTION 10 LEGEND
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
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THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY
RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL
AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY
BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:_____________________________________
Walter Kornbluh
President and Chief Executive Officer
[Seal]
__________________________________
Secretary
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ____________________ hereby sells, assigns, and
transfers unto ______________________ a Warrant to purchase _____________ shares
of Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint _________________ attorney to transfer such Warrant on the books of
the Company, with full power of substitution.
Dated:________________________
Signature:________________________________
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NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
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ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____________ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated:___________________________ Name:______________________________
(Print)
Address:
_________________________________
_________________________________ ______________________________
(Signature)
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EXHIBIT 4.7
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
Warrant for the Purchase
of 12,500
Shares of Common Stock, Without Par Value
THIS CERTIFIES that, for value received, Chic Vitagliano, (together with
all permitted assigns, the "Holder") is entitled to subscribe for, and purchase
from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on September 17, 1999 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the third anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $0.50 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to employment with Company as a
signing bonus.
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT
This Warrant may be exercised during the Exercise Period, either in whole or in
part, by the surrender of this Warrant (with the election at the end hereof duly
executed) to the Company at its office at 5236 Colodny Drive, Suite 100, Agoura
Hills, California 91301, or at such other place as is designated in writing by
the Company, together with a certified or bank cashier's
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check payable to the order of the Company in an amount equal to the product of
the Exercise Price and the number of Warrant Shares for which this Warrant is
being exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing in the name
of the Holder or its designee. If this Warrant should be exercised in part only,
the Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a Warrant evidencing the right of the Holder to purchase the balance of
the aggregate number of Warrant Shares purchasable hereunder as to which this
Warrant has not been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Warrants to be transferred on its books to any person if, in
the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are
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duly authorized and, upon receipt by the Company of the full payment for such
Warrant Shares, will be validly issued, fully paid, and nonassessable, without
any personal liability attaching to the ownership thereof and will not be issued
in violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION
(a) In the event that the Company shall at any time after the Initial
Exercise Date (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common
Stock into a smaller number of share; or (iv) issue any shares of
its capital stock by reclassification of the Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), then, in each case, the Exercise Price per Warrant
Share in effect at the time of the record date for the
determination of shareholders entitled to receive such dividend
or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it
shall equal the price determined by multiplying such Exercise
Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
action, and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such
action. Such adjustment shall be made successively whenever any
event listed above shall occur and shall become effective at the
close of business on such record date or at the close of business
on the date immediately preceding such effective date as
applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the
case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as
of a record date for a specified event, the Company may elect to
defer, until the occurrence of such event, issuing to the Holder,
if the Holder exercised this Warrant after such record date, the
Warrant Shares, if any, issuable upon such exercise over and
above the number of Warrant Shares issuable upon such exercise on
the basis of the number of shares of Common Stock in effect prior
to such adjustment; provided, however, that the Company shall
deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder's right to receive such additional shares
of Common Stock upon the occurrence of the event requiring such
adjustment.
(d) Whenever there shall be an adjustment as provided in this Section
5, the Company shall within 15 days thereafter cause written
notice thereof to be sent by registered mail, postage prepaid, to
the Holder, at its address as it shall appear in the Warrant
Register, which notice shall be accompanied by an officer's
certificate setting forth the number of Warrant Shares issuable
and the Exercise Price thereof after such adjustment and setting
forth the computation thereof, which officer's certificate shall
be conclusive evidence of the correctness of any such adjustment
absent manifest error.
(e) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the
exercise of this Warrant. If any
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<PAGE> 4
faction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the
Company shall purchase such fraction for an amount in cash equal
to the same fraction of the average closing sale price (or
average of the closing bid and asked prices, if closing sale
price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided,
however, that any adjustments which by reason of this Section 5
are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this Warrant
is adjusted pursuant to subsection (a) above, the number of
Warrant Shares issuable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of Warrant
Shares theretofore issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or
merger of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock into shares
of other stock or other securities or property), or in the case
of any sale, lease, or conveyance to another corporation of the
property and assets of any nature of the Company as an entirety
or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall
thereafter be deliverable upon exercise of this Warrant (in lieu
of the number of Warrant Shares theretofore deliverable) the
number of shares of stock or other securities or property to
which a holder of the respective number of Warrant Shares which
would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this
Warrant had been exercised in full immediately prior to such
Reorganization. In case of any Reorganization, appropriate
adjustment, as determined in good faith by the Board of Directors
of the Company, shall be made in the application of the
provisions herein set forth with respect to the rights and
interests of the Holder so that the provisions set forth herein
shall thereafter be applicable, as nearly as possible, in
relation to any shares or other property thereafter deliverable
upon exercise of this Warrant. Any such adjustment shall be made
by, and set forth in, a supplemental agreement between the
Company, or any successor thereto, and the Holder, with respect
to this Warrant, and shall for all purposes hereof conclusively
be deemed to be an appropriate adjustment. The Company shall not
effect any such Reorganization unless, upon or prior to the
consummation thereof, the successor corporation, or if the
Company shall be the surviving corporation in any such
Reorganization and is not the issuer of the shares of stock or
other
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securities or property to be delivered to holders of shares of
the Common Stock outstanding at the effective time thereof, then
such issuer, shall assume by written instrument the obligation to
deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in
accordance with the foregoing provision. In the event of sale,
lease, or conveyance or other transfer of all or substantially
all of the assets of the Company as part of a plan for
liquidation of the Company, all rights to exercise this Warrant
shall terminate 30 days after the Company gives written notice to
the Holder that such sale or conveyance or other transfer has
been consummated.
(b) In case of any reclassification or change of the shares of Common
Stock issuable upon exercise of this Warrant (other than a change
in par value or from a specified par value to not par value, or
as a result of a subdivision or combination, but including any
change in the shares into two or more classes or series of
shares), or in case of any consolidation or merger of another
corporation into the Company in which the Company is the
continuing corporation and in which there is a reclassification
or change (including a change to the right to receive cash or
other property) of the shares of Common Stock (other than a
change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but
including any change in the shares into two or more classes or
series of shares), the Holder or holders of this Warrant shall
have the right thereafter to receive upon exercise of this
Warrant solely the property, cash, or any combination thereof
receivable upon such reclassification, change, consolidation, or
merger by a holder of the number of Warrant Shares for which this
Warrant might have been exercised immediately prior to such
reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall
be as nearly equivalent as practicable to the adjustments in
Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common
Stock and to successive consolidations, mergers, sales, leases,
or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution
(other than regularly scheduled cash dividends which are not in a
greater amount per share than the most recent such cash dividend)
to all holders of Common Stock; or
(b) to issue any rights, warrants, or other securities to all holders
of Common Stock entitling them to purchase any additional shares
of Common Stock or any other rights, warrants, or other
securities; or
(c) to effect any reclassification or change of outstanding shares of
Common Stock or any consolidation, merger, sale, lease, or
conveyance of property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
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<PAGE> 6
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give
written notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
SECTION 10 LEGEND
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
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THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY
RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL
AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY
BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:_____________________________________
Walter Kornbluh
President and Chief Executive Officer
[Seal]
__________________________________
Secretary
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<PAGE> 8
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ____________________ hereby sells, assigns, and
transfers unto ______________________ a Warrant to purchase _____________ shares
of Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint _________________ attorney to transfer such Warrant on the books of
the Company, with full power of substitution.
Dated:________________________
Signature:________________________________
8
<PAGE> 9
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
9
<PAGE> 10
ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____________ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated:___________________________ Name:______________________________
(Print)
Address:
_________________________________
_________________________________ ______________________________
(Signature)
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<PAGE> 1
EXHIBIT 4.8
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
WARRANT FOR THE PURCHASE
OF
50,000 SHARES OF COMMON STOCK, WITHOUT PAR VALUE
APRIL 18, 1998
THIS CERTIFIES that, for value received, MR. JOSEPH R. MANCUSO PH.D.
(together with all permitted assigns, the "Holder") is entitled to subscribe
for, and purchase from, INTERSCIENCE COMPUTER CORPORATION, a California
corporation (the "Company"), upon the terms and conditions set forth herein, at
any time or from time to time during the period commencing on April 18, 1998
(such date being referenced to as the Initial Exercise Date), and terminating at
5:00 p.m., Los Angeles local time, on the second anniversary of the Initial
Exercise Date (the "Exercise Period"). This Warrant is exercisable at an
exercise price per share equal to $1.00 per share; provided, however, that upon
the occurrence of any of the events specified in Section 5 hereof, the rights
granted by this Warrant, including the number of shares of Common Stock to be
received upon such exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to that certain Plan of
Reorganization of the Company.
<PAGE> 2
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT.
This Warrant may be exercised during the Exercise Period, either in
whole or in part, by the surrender of this Warrant (with the election at the end
hereof duly executed) to the Company at its office at 5236 Colodny Drive, Suite
100, Agoura Hills, California 91301, or at such other place as is designated in
writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the product of the
Exercise Price and the number of Warrant Shares for which this Warrant is being
exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES.
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing the Warrant
Shares issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a Warrant
evidencing the right of the Holder to purchase the balance of the aggregate
number of Warrant Shares purchasable hereunder as to which this Warrant has not
been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE.
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have
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<PAGE> 3
no obligation to cause Warrants to be transferred on its books to any person if,
in the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES.
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are duly
authorized and, upon receipt by the Company of the full payment for such Warrant
Shares, will be validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof and will not be issued in
violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION.
(a) In the event that the Company shall at any time after the
Initial Exercise Date (i) declare a dividend on the outstanding Common Stock
payable in shares of its capital stock, (ii) subdivide the outstanding Common
Stock; (iii) combine the outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price per Warrant Share in effect at the time
of the record date for the determination of shareholders entitled to receive
such dividend or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it shall equal the
price determined by multiplying such Exercise Price by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be the number of shares
of Common Stock outstanding after giving effect to such action. Such adjustment
shall be made successively whenever any event listed above shall occur and shall
become effective at the close of business on such record date or at the close of
business on the date immediately preceding such effective date, as applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the Warrant Shares, if any, issuable upon such exercise over
and above the number of Warrant Shares issuable upon such exercise on the basis
of the number of shares of Common Stock in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due bill or
other appropriate instrument evidencing the Holder's right to receive such
additional shares of Common Stock upon the occurrence of the event requiring
such adjustment.
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<PAGE> 4
(d) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall within 15 days thereafter cause written notice
thereof to be sent by registered mail, postage prepaid, to the Holder, at its
address as it shall appear in the Warrant Register, which notice shall be
accompanied by an officer's certificate setting forth the number of Warrant
Shares issuable and the Exercise Price thereof after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive evidence of
the correctness of any such adjustment absent manifest error.
(e) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
average closing sale price (or average of the closing bid and asked prices, if
closing sale price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided, however, that any
adjustments which by reason of this Section 5 are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subsection (a) above, the number of Warrant
Shares issuable upon exercise of this Warrant shall simultaneously be adjusted
by multiplying the number of Warrant Shares theretofore issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER.
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or merger of the
Company with or into another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in
any reclassification of the outstanding shares of Common Stock or the conversion
of such outstanding shares of Common Stock into shares of other stock or other
securities or property), or in the case of any sale, lease, or conveyance to
another corporation of the property and assets of any nature of the Company as
an entirety or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of this Warrant (in lieu of the number of Warrant
Shares theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the respective number of Warrant
Shares which would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this Warrant had
been exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any
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<PAGE> 5
shares or other property thereafter deliverable upon exercise of this Warrant.
Any such adjustment shall be made by, and set forth in, a supplemental agreement
between the Company, or any successor thereto, and the Holder, with respect to
this Warrant, and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization
unless, upon or prior to the consummation thereof, the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in accordance with
the foregoing provisions. In the event of sale, lease, or conveyance or other
transfer of all or substantially all of the assets of the Company as part of a
plan for liquidation of the Company, all rights to exercise this Warrant shall
terminate 30 days after the Company gives written notice to the Holder that such
sale or conveyance or other transfer has been consummated.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from a specified par value to no par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
in the shares into two or more classes or series of shares), the Holder or
holders of this Warrant shall have the right thereafter to receive upon exercise
of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of
Warrant Shares for which this Warrant might have been exercised immediately
prior to such reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall be as nearly
equivalent as practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS.
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
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<PAGE> 6
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares
of Common Stock or any consolidation, merger, sale, lease, or conveyance of
property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give written
notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS.
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
6
<PAGE> 7
SECTION 10 LEGEND.
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS.
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW.
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
7
<PAGE> 8
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
---------------------------------------
Walter Kornblau
President and Chief Executive Officer
[Seal]
- ----------------------------------
Secretary
8
<PAGE> 9
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ______________________ hereby sells, assigns, and
transfers unto _________________ a Warrant to purchase __________ shares of
Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint ___________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated: _________________
Signature __________________________
9
<PAGE> 10
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
10
<PAGE> 11
ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated: __________________ Name _______________________________
(Print)
Address:
_________________________
_________________________
____________________________________
(Signature)
11
<PAGE> 1
EXHIBIT 4.9
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
WARRANT FOR THE PURCHASE
OF
50,000 SHARES OF COMMON STOCK, WITHOUT PAR VALUE
APRIL 18, 1998
THIS CERTIFIES that, for value received, MR. GEORGE HARMON (together
with all permitted assigns, the "Holder") is entitled to subscribe for, and
purchase from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on April 18, 1998 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the second anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $1.00 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to that certain Plan of
Reorganization of the Company.
<PAGE> 2
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT.
This Warrant may be exercised during the Exercise Period, either in
whole or in part, by the surrender of this Warrant (with the election at the end
hereof duly executed) to the Company at its office at 5236 Colodny Drive, Suite
100, Agoura Hills, California 91301, or at such other place as is designated in
writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the product of the
Exercise Price and the number of Warrant Shares for which this Warrant is being
exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES.
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing the Warrant
Shares issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a Warrant
evidencing the right of the Holder to purchase the balance of the aggregate
number of Warrant Shares purchasable hereunder as to which this Warrant has not
been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE.
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have
2
<PAGE> 3
no obligation to cause Warrants to be transferred on its books to any person if,
in the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES.
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are duly
authorized and, upon receipt by the Company of the full payment for such Warrant
Shares, will be validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof and will not be issued in
violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION.
(a) In the event that the Company shall at any time after the
Initial Exercise Date (i) declare a dividend on the outstanding Common Stock
payable in shares of its capital stock, (ii) subdivide the outstanding Common
Stock; (iii) combine the outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price per Warrant Share in effect at the time
of the record date for the determination of shareholders entitled to receive
such dividend or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it shall equal the
price determined by multiplying such Exercise Price by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be the number of shares
of Common Stock outstanding after giving effect to such action. Such adjustment
shall be made successively whenever any event listed above shall occur and shall
become effective at the close of business on such record date or at the close of
business on the date immediately preceding such effective date, as applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the Warrant Shares, if any, issuable upon such exercise over
and above the number of Warrant Shares issuable upon such exercise on the basis
of the number of shares of Common Stock in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due bill or
other appropriate instrument evidencing the Holder's right to receive such
additional shares of Common Stock upon the occurrence of the event requiring
such adjustment.
3
<PAGE> 4
(d) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall within 15 days thereafter cause written notice
thereof to be sent by registered mail, postage prepaid, to the Holder, at its
address as it shall appear in the Warrant Register, which notice shall be
accompanied by an officer's certificate setting forth the number of Warrant
Shares issuable and the Exercise Price thereof after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive evidence of
the correctness of any such adjustment absent manifest error.
(e) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
average closing sale price (or average of the closing bid and asked prices, if
closing sale price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided, however, that any
adjustments which by reason of this Section 5 are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subsection (a) above, the number of Warrant
Shares issuable upon exercise of this Warrant shall simultaneously be adjusted
by multiplying the number of Warrant Shares theretofore issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER.
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or merger of the
Company with or into another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in
any reclassification of the outstanding shares of Common Stock or the conversion
of such outstanding shares of Common Stock into shares of other stock or other
securities or property), or in the case of any sale, lease, or conveyance to
another corporation of the property and assets of any nature of the Company as
an entirety or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of this Warrant (in lieu of the number of Warrant
Shares theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the respective number of Warrant
Shares which would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this Warrant had
been exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any
4
<PAGE> 5
shares or other property thereafter deliverable upon exercise of this Warrant.
Any such adjustment shall be made by, and set forth in, a supplemental agreement
between the Company, or any successor thereto, and the Holder, with respect to
this Warrant, and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization
unless, upon or prior to the consummation thereof, the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in accordance with
the foregoing provisions. In the event of sale, lease, or conveyance or other
transfer of all or substantially all of the assets of the Company as part of a
plan for liquidation of the Company, all rights to exercise this Warrant shall
terminate 30 days after the Company gives written notice to the Holder that such
sale or conveyance or other transfer has been consummated.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from a specified par value to no par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
in the shares into two or more classes or series of shares), the Holder or
holders of this Warrant shall have the right thereafter to receive upon exercise
of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of
Warrant Shares for which this Warrant might have been exercised immediately
prior to such reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall be as nearly
equivalent as practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS.
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
5
<PAGE> 6
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares
of Common Stock or any consolidation, merger, sale, lease, or conveyance of
property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give written
notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS.
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
6
<PAGE> 7
SECTION 10 LEGEND.
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS.
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW.
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
7
<PAGE> 8
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
---------------------------------------
Walter Kornblau
President and Chief Executive Officer
[Seal]
- ----------------------------------
Secretary
8
<PAGE> 9
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ______________________ hereby sells, assigns, and
transfers unto _________________ a Warrant to purchase __________ shares of
Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint ___________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated: _________________
Signature __________________________
9
<PAGE> 10
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
10
<PAGE> 11
ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated: __________________ Name _______________________________
(Print)
Address:
_________________________
_________________________
____________________________________
(Signature)
11
<PAGE> 1
EXHIBIT 4.10
WARRANT
NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS
WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
INTERSCIENCE COMPUTER CORPORATION
WARRANT FOR THE PURCHASE
OF
50,000 SHARES OF COMMON STOCK, WITHOUT PAR VALUE
APRIL 18, 1998
THIS CERTIFIES that, for value received, MR. NORMAN BAKER (together with
all permitted assigns, the "Holder") is entitled to subscribe for, and purchase
from, INTERSCIENCE COMPUTER CORPORATION, a California corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on April 18, 1998 (such date being
referenced to as the Initial Exercise Date), and terminating at 5:00 p.m., Los
Angeles local time, on the second anniversary of the Initial Exercise Date (the
"Exercise Period"). This Warrant is exercisable at an exercise price per share
equal to $1.00 per share; provided, however, that upon the occurrence of any of
the events specified in Section 5 hereof, the rights granted by this Warrant,
including the number of shares of Common Stock to be received upon such
exercise, shall be adjusted as therein specified.
This Warrant is being issued pursuant to that certain Plan of
Reorganization of the Company.
<PAGE> 2
Each share of Common Stock issuable upon the exercise hereof shall be
hereinafter referred to as a "Warrant Share".
SECTION 1 EXERCISE OF WARRANT.
This Warrant may be exercised during the Exercise Period, either in
whole or in part, by the surrender of this Warrant (with the election at the end
hereof duly executed) to the Company at its office at 5236 Colodny Drive, Suite
100, Agoura Hills, California 91301, or at such other place as is designated in
writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the product of the
Exercise Price and the number of Warrant Shares for which this Warrant is being
exercised.
SECTION 2 RIGHTS UPON EXERCISE; DELIVERY OF SECURITIES.
Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which this Warrant
was exercised shall not then have been actually delivered to the Holder. As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing the Warrant
Shares issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a Warrant
evidencing the right of the Holder to purchase the balance of the aggregate
number of Warrant Shares purchasable hereunder as to which this Warrant has not
been exercised or assigned.
SECTION 3 REGISTRATION OF TRANSFER AND EXCHANGE.
Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery thereof duly endorsed by the Holder or by his duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment,
or authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Upon any registration
of transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have
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no obligation to cause Warrants to be transferred on its books to any person if,
in the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act and the rules and regulations thereunder.
SECTION 4 RESERVATION OF SHARES.
The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company represents that all
shares of Common Stock issuable upon exercise of this Warrant are duly
authorized and, upon receipt by the Company of the full payment for such Warrant
Shares, will be validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof and will not be issued in
violation of any preemptive or similar rights of shareholders.
SECTION 5 ANTIDILUTION.
(a) In the event that the Company shall at any time after the
Initial Exercise Date (i) declare a dividend on the outstanding Common Stock
payable in shares of its capital stock, (ii) subdivide the outstanding Common
Stock; (iii) combine the outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price per Warrant Share in effect at the time
of the record date for the determination of shareholders entitled to receive
such dividend or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it shall equal the
price determined by multiplying such Exercise Price by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be the number of shares
of Common Stock outstanding after giving effect to such action. Such adjustment
shall be made successively whenever any event listed above shall occur and shall
become effective at the close of business on such record date or at the close of
business on the date immediately preceding such effective date, as applicable.
(b) All calculations under this Section 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(c) In any case in which this Section 5 shall require that an
adjustment in the number of Warrant Shares be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the Warrant Shares, if any, issuable upon such exercise over
and above the number of Warrant Shares issuable upon such exercise on the basis
of the number of shares of Common Stock in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due bill or
other appropriate instrument evidencing the Holder's right to receive such
additional shares of Common Stock upon the occurrence of the event requiring
such adjustment.
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(d) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall within 15 days thereafter cause written notice
thereof to be sent by registered mail, postage prepaid, to the Holder, at its
address as it shall appear in the Warrant Register, which notice shall be
accompanied by an officer's certificate setting forth the number of Warrant
Shares issuable and the Exercise Price thereof after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive evidence of
the correctness of any such adjustment absent manifest error.
(e) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
average closing sale price (or average of the closing bid and asked prices, if
closing sale price is not available) of Common Stock for the 10 trading days
ending on and including the date of exercise of this Warrant.
(f) No adjustment in the Exercise Price per Warrant Share shall be
required if such adjustment is less than $0.25; provided, however, that any
adjustments which by reason of this Section 5 are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
(g) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subsection (a) above, the number of Warrant
Shares issuable upon exercise of this Warrant shall simultaneously be adjusted
by multiplying the number of Warrant Shares theretofore issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
SECTION 6 RECLASSIFICATION; REORGANIZATION; MERGER.
(a) In case of any capital reorganization, other than in the cases
referred to in Section 5(a) hereof, or the consolidation or merger of the
Company with or into another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in
any reclassification of the outstanding shares of Common Stock or the conversion
of such outstanding shares of Common Stock into shares of other stock or other
securities or property), or in the case of any sale, lease, or conveyance to
another corporation of the property and assets of any nature of the Company as
an entirety or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of this Warrant (in lieu of the number of Warrant
Shares theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the respective number of Warrant
Shares which would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this Warrant had
been exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any
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shares or other property thereafter deliverable upon exercise of this Warrant.
Any such adjustment shall be made by, and set forth in, a supplemental agreement
between the Company, or any successor thereto, and the Holder, with respect to
this Warrant, and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization
unless, upon or prior to the consummation thereof, the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder such shares of stock, securities, cash, or
other property as such Holder shall be entitled to purchase in accordance with
the foregoing provisions. In the event of sale, lease, or conveyance or other
transfer of all or substantially all of the assets of the Company as part of a
plan for liquidation of the Company, all rights to exercise this Warrant shall
terminate 30 days after the Company gives written notice to the Holder that such
sale or conveyance or other transfer has been consummated.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from a specified par value to no par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
in the shares into two or more classes or series of shares), the Holder or
holders of this Warrant shall have the right thereafter to receive upon exercise
of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of
Warrant Shares for which this Warrant might have been exercised immediately
prior to such reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall be as nearly
equivalent as practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
SECTION 7 NOTICE OF CERTAIN EVENTS.
In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
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<PAGE> 6
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares
of Common Stock or any consolidation, merger, sale, lease, or conveyance of
property, as described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price per Warrant Share;
then, and in any one or more of such cases, the Company shall give written
notice thereof by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to; (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price per Warrant Share.
SECTION 8 CHARGES AND TAXES
The issuance of any shares or other securities upon the exercise of this
Warrant and the delivery of certificates or other instruments representing such
shares or other securities shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue 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.
SECTION 9 PERIODIC REPORTS.
The Company agrees that following the Initial Exercise Date and until
all the Warrant Shares shall have been sold pursuant to Rule 144 under the
Securities Act, it shall keep current in filing all reports, statements, and
other materials required to be filed with the Commission to permit holders of
the Warrant Shares to sell such securities under Rule 144 under the Securities
Act.
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SECTION 10 LEGEND.
Until sold pursuant to the provisions of Rule 144 or otherwise
registered under the Securities Act, the Warrant Shares issued on exercise of
the Warrants shall be subject to a stop transfer order and the certificate or
certificates representing the Warrant Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1)
A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.
SECTION 11 LOSS; THEFT; DESTRUCTION; MUTILATION.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant (and upon surrender of any Warrant if
mutilated), and upon receipt by the Company of reasonably satisfactory
indemnification, the Company shall execute and deliver to the Holder thereof a
new Warrant of like date, tenor, and denomination.
SECTION 12 SHAREHOLDER RIGHTS.
The Holder of any Warrant shall not have, solely on account of such
status, any rights of a shareholder of the Company, either at law or in equity,
or to any notice of meetings of shareholders or of any other proceedings of the
Company, except as provided in this Warrant.
SECTION 13 GOVERNING LAW.
This Warrant shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
---------------------------------------
Walter Kornblau
President and Chief Executive Officer
[Seal]
- ----------------------------------
Secretary
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ______________________ hereby sells, assigns, and
transfers unto _________________ a Warrant to purchase __________ shares of
Common Stock, without par value, of Interscience Computer Corporation, a
California corporation (the "Company"), and does hereby irrevocably constitute
and appoint ___________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated: _________________
Signature __________________________
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NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
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ELECTION TO EXERCISE
To: Interscience Computer Corporation
5236 Colodny Drive
Agoura Hills, California 91301
The undersigned hereby exercises his, her, or its rights to purchase
shares of Common Stock, without par value ("the Common Stock"), of Interscience
Computer Corporation, a California corporation (the "Company"), covered by the
within Warrant and tenders payment herewith in the amount of $_____ in
accordance with the terms thereof, and requests that certificates for the
securities constituting such shares of Common Stock be issued in the name of,
and delivered to:
-----------------------------------------------------------------------
(Print Name, Address, and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated: __________________ Name _______________________________
(Print)
Address:
_________________________
_________________________
____________________________________
(Signature)
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Exhibit 5.1
Direct Dial: 213-688-3698
e-mail: [email protected]
May 12, 2000
Interscience Computer Corporation
600 Hampshire Road, Suite 105
Westlake Village
California 91361
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are counsel to Interscience Computer Corporation, a California
corporation (the "Company"), and have assisted in connection with the
preparation and filing with the Securities and Exchange Commission of a
Registration Statement of the Company on Form S-8 (the "Registration Statement")
covering 1,677,500 shares (the "Shares") of the common stock of the Company
issuable pursuant to the exercise of options issued under the Company's 2000
Stock Option Plan (the "Plan") and the exercise of warrants granted to certain
employees, directors and consultants of the Company (the "Warrants").
We have examined the proceedings heretofore taken and are familiar with
the procedures proposed to be taken by the Company in connection with the
authorization, issuance and sale of the Shares.
It is our opinion that the Shares to be issued and sold by the Company
pursuant to the Registration Statement will be, when sold and paid for pursuant
to the terms of the Plan and the Warrants, validly issued, fully paid for and
non-assessable.
We hereby consent to the use of our opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ David L. Ficksman
David L. Ficksman
of Loeb & Loeb LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC
Interscience Computer Corporation
Westlake Village, California
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated November 5, 1999, relating to the financial statements of Interscience
Computer Corporation appearing in the Company's Annual Report on Form 10-K for
the year ended September 30, 1999.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO SEIDMAN, LLP
Los Angeles, California
April 18, 20000
