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DBS Industries Inc – ‘SB-2/A’ on 8/10/00 – EX-4

On: Thursday, 8/10/00, at 5:28pm ET · Accession #: 1001277-0-219 · File #: 333-41690

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 8/10/00  DBS Industries Inc                SB-2/A                 4:291K                                   Locke Lord Bi… Lidell/FA

Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SB-2/A      Pre-Effective Amendment to Registration of            93    473K 
                          Securities by a Small-Business Issuer                  
 2: EX-4        Exhibit 4.3                                           11     47K 
 3: EX-5        Exhibit 5.1 and 23.1                                   2±     8K 
 4: EX-23       Consent                                                1      5K

EX-4 — Exhibit 4.3

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THESE  SECURITIES HAVE NOT BEEN REGISTERED  UNDER THE SECURITIES ACT OF 1933, AS
AMENDED,  AND MAY BE REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.                                                 

 COMMON STOCK PURCHASE WARRANT

OF

DBS INDUSTRIES, INC.

No. ____                                                                        

        FOR VALUE RECEIVED,  DBS INDUSTRIES,  INC., a Delaware  corporation (the
"Company")  hereby  certifies  that SJ Capital  (the  "Agent") or its  permitted
assigns,  is entitled to purchase from the Company,  at any time or from time to
time  commencing on ____, 2000 and prior to ___ 2005,  _________  (______) fully
paid and non-assessable  shares of the Common Stock, $.0004 par value per share,
of the Company for an aggregate purchase price of $______ (computed on the basis
of $_____ per share).  (Hereinafter,  (i) the Common Stock, $.0004 par value, of
the  Company,  is referred to as the "Common  Stock,"  (ii) the shares of Common
Stock  purchasable  hereunder are referred to as the "Warrant Shares," (iii) the
aggregate purchase price payable for the Warrant Shares hereunder is referred to
as the "Aggregate Warrant Price," (iv) the price payable for each of the Warrant
Shares  hereunder  is  referred  to as the "Per Share  Warrant  Price," (v) this
Warrant and all warrants  hereafter  issued in exchange or substitution for this
Warrant or such similar Warrants are referred to as the "Warrants" and (vi) each
holder of this Warrant is referred to as the  "Holder").  The Aggregate  Warrant
Price is not subject to  adjustment.  The Per Share  Warrant Price is subject to
adjustment as hereinafter  provided;  in the event of any such  adjustment,  the
number of Warrant  Shares,  deliverable  upon  exercise of this Warrant shall be
adjusted by dividing the Aggregate  Warrant Price by the Per Share Warrant Price
in effect immediately after such adjustment.                                    

1.      Exercise of Warrant.                                                    

        1.1 This Warrant may be exercised,  in whole at any time or in part from
time to time,  commencing on ___, 2000 and prior to ___,  2005, by the Holder by
the surrender of this Warrant (with the subscription form at the end hereof duly
executed)  at the  address set forth in Section 9 hereof,  together  with proper
payment of the Aggregate  Warrant Price,  or the  proportionate  part thereof if
this  Warrant is  exercised  in part,  with  payment for Warrant  Shares made by
certified or official bank check payable to the order of the Company.           

        1.2 If this Warrant is exercised in part, this Warrant must be exercised
for a number of whole  shares of Common Stock whose value is not less than $500,
and the Holder is entitled to receive a new Warrant  covering the Warrant Shares
which have not been exercised and setting forth the proportionate               

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part of the Aggregate  Warrant Price  applicable  to such Warrant  Shares.  Upon
surrender  of  this  Warrant,  the  Company  will  (i)  issue a  certificate  or
certificates in the name of the Holder for the largest number of whole shares of
Common  Stock to which the Holder  shall be  entitled  and,  if this  Warrant is
exercised  in whole,  in lieu of any  fractional  shares of the Common  Stock to
which the Holder shall be entitled, pay to the Holder cash in an amount equal to
the fair value of such fractional  shares  (determined in such reasonable manner
as the Board of Directors of the Company shall determine),  and (ii) deliver the
other securities and properties receivable upon exercise of this Warrant, or the
proportionate part thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.                                                     

2. Reservation of Warrant Shares; Listing. The Company agrees that, prior to the
expiration  of this Warrant,  the Company will at all times (a) have  authorized
and in reserve,  and will keep available,  solely for issuance and delivery upon
the exercise of this  Warrant,  the shares of the Common Stock free and clear of
all  restrictions  on sale or  transfer,  other  than  under  Federal  or  state
securities laws, and free and clear of all preemptive rights and rights of first
refusal and (b) have authorized and in reserve, and will keep available,  solely
for issuance or delivery  upon the exercise of this Warrant the shares of Common
Stock  and  other  securities  and  properties  as from  time to time  shall  be
receivable  upon such exercise,  free and clear of all  restrictions  on sale or
transfer,  other than under Federal or state securities laws, and free and clear
of all  preemptive  rights and rights of first  refusal;  and (c) if the Company
hereafter  lists its Common  Stock on any  national  securities  exchange  or on
Nasdaq,  use its best efforts to keep the Common Stock authorized for listing on
such exchange or on Nasdaq.                                                     

3.      Protection Against Dilution.                                            

        3.1 If, at any time or from time to time after the date of this Warrant,
the Company  shall issue or  distribute  to the holder of shares of Common Stock
any evidence of its  indebtedness,  any other  securities  of the Company or any
cash,  property  or  other  assets  (excluding  a  subdivision,  combination  or
reclassification, or dividend or distribution payable in shares of Common Stock,
referred  to in  Subsection  3.2,  and also  excluding  cash  dividends  or cash
distributions  paid out of net profits  legally  available  therefor in the full
amount  thereof,  together with the value of other  dividends and  distributions
made substantially  concurrently  therewith or pursuant to a plan which includes
payment  thereof,  that is  equivalent  to not more than 5% of the Company's net
worth) (any such non-excluded  event being herein called a "Special  Dividend"),
the Company  shall give the Holder at least thirty (30)  business days notice of
such  Special  Dividend  prior to the record date  therefor,  and the Holder may
elect to exercise this Warrant in whole or in part prior to such record date and
to  participate  in such Special  Dividend.  Should the Company fail to give the
Holder  notice as provided in this  Subsection  3.1, the Per Share Warrant Price
shall be adjusted by multiplying the Per Share Warrant Price then in effect by a
fraction,  the numerator of which shall be the then current  Market Price of the
Common  Stock  less  the  fair  market  value  determined  in good  faith by the
Company's Board of Directors) of the evidence of indebtedness, cash, securities,
or property,  or other assets  issued or  distributed  in such Special  Dividend
applicable  to one share of Common Stock and the  denominator  of which shall be
the then current Market Price of the Common Stock.  An adjustment  made pursuant
to this Subsection 3.1 shall become effective  immediately after the record date
of any such Special Dividend.                                                   

        3.2 In case the  Company  shall  hereafter  (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock , (ii) subdivide its
outstanding  shares  of Common  Stock  into a greater  number of  shares,  (iii)
combine its outstanding shares of Common Stock into a small number of shares    

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or (iv)  issue by  reclassification  of its  Common  Stock any shares of capital
stock of the Company,  the Per Share Warrant Price shall be adjusted to be equal
to a fraction,  the numerator of which shall be the Aggregate  Warrant Price and
the  denominator  of which  shall be number  of shares of Common  Stock or other
capital  stock of the  Company  which the Holder  would  have owned  immediately
following such action had such Warrant been exercised immediately prior thereto.
An  adjustment  made  pursuant to this  Subsection  3.2 shall  become  effective
immediately  after the record date in the case of a dividend or distribution and
shall become  effective  immediately  after the effective  date in the case of a
subdivision, combination or reclassification.                                   

        3.3 In case of any capital  reorganization or  reclassification,  or any
consolidation  or merger to which the  Company is a party other than a merger or
consolidation in which the Company is the continuing corporation,  or in case of
any sale or  conveyance  to another  entity of the property of the Company as an
entirety  or  substantially  as an  entirety,  or in the  case of any  statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Warrant  shall have the right  thereafter  to receive on the exercise of
this Warrant the kind and amount of securities, cash or other property which the
Holder would have owned or have been entitled to receive  immediately after such
reorganization,  reclassification,  consolidation,  merger,  statutory exchange,
sale or  conveyance  had this Warrant been  exercised  immediately  prior to the
effective date of such reorganization, reclassification,  consolidation, merger,
statutory  exchange,  sale or  conveyance  and in any such case,  if  necessary,
appropriate  adjustment  shall be made in the  application of the provisions set
forth in this Section 3 with respect to the rights and  interests  thereafter of
the  Holder of this  Warrant  to the end that the  provisions  set forth in this
Section 3 shall thereafter  correspondingly be made applicable, as nearly as may
reasonably  be,  in  relation  to any  shares  of stock or other  securities  or
property  thereafter  deliverable  on the  exercise of this  Warrant.  The above
provisions  of  this   Subsection  3.3  shall   similarly  apply  to  successive
reorganizations,    reclassifications,    consolidations,   mergers,   statutory
exchanges,  sales or  conveyances.  The Company  shall require the issuer of any
shares of stock or other  securities or property  thereafter  deliverable on the
exercise  of  this  Warrant  to be  responsible  for all of the  agreements  and
obligations  of  the  Company  hereunder.  Notice  of any  such  reorganization,
reclassification,  consolidation, merger, statutory exchange, sale or conveyance
and of such provisions so proposed to be made,  shall be mailed to the Holder(s)
of the Warrant not less than thirty (30)  business  days prior to such event.  A
sale  of  all  or  substantially  all  of  the  assets  of  the  Company  for  a
consideration consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes.                                           

        3.4 In case any event  shall  occur as to which the  provisions  of this
Section 3 are not  strictly  applicable  but as to which the failure to make any
adjustment  would not fairly  protect the purchase  rights  represented  by this
Warrant in accordance with the essential intent and principles  thereof then, in
each such case,  the majority of the Holders may elect to prepare a  certificate
setting forth in  reasonable  detail the facts which the majority of the Holders
believe require such adjustment or modification  and the manner of computing the
same and cause a copy of such  certificate  to be mailed  to the  Company.  Upon
receipt of such  certificate,  the Company will  promptly  make the  adjustments
described therein; provided, however, that in the event the Company disputes its
obligation to make such adjustments, such dispute shall promptly be submitted to
binding  arbitration  by and pursuant to the rules of the  American  Arbitration
Association  in San  Francisco,  California  (the "AAA") in accordance  with the
rules of the AAA,  whose  decision each of the parties agrees shall be final and
binding on all parties.  In the event such  dispute is submitted to  arbitration
under this Subsection 3.4, the non-prevailing party in such arbitration         

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shall be  responsible  for all fees and  expenses  relating to such  arbitration
(including,  without limitation, the reasonable fees and expenses of counsel and
a firm of independent public accountants, if any, for the prevailing party).    

        3.5 No  adjustment  in the Per Share  Warrant  price  shall be  required
unless such  adjustment  would require an increase or decrease of at least $0.05
per share of Common Stock;  provided,  however,  that any  adjustments  which by
reason of this  Subsection  3.5 are not  required  to be made  shall be  carried
forward and taken into account in any subsequent adjustment;  provided, further,
however,  that  adjustments  shall be required and made in  accordance  with the
provisions  of this  Section 3 (other than this  Subsection  3.5) not later than
such time as may be  required  in order to  preserve  the  tax-free  nature of a
distribution  to the Holder of this  Warrant or Common Stock  issuable  upon the
exercise  hereof.  All  calculations  under this  Section 3 shall be made to the
nearest cent or to the nearest  1/100th of a share, as the case may be. Anything
in this Section 3 to the contrary notwithstanding, the Company shall be entitled
to make such  reductions  in the Per Share Warrant  Price,  in addition to those
required by this Section 3, as it in its  discretion  shall deem to be advisable
in order  that any stock  dividend,  subdivision  of shares or  distribution  of
rights to purchase  stock or securities  convertible or  exchangeable  for stock
hereafter made by the Company to its stockholders shall not be taxable.         

        3.6 Whenever the Per Share Warrant Price is adjusted as provided in this
Section 3 and upon any  modification  of the  rights of  Holder of  Warrants  in
accordance  with this  Section 3, the  Company  shall  promptly  prepare a brief
statement of the facts requiring such adjustment or modification  and the manner
of computing the same and cause copies of such  certificate  to be mailed to the
Holders of the  Warrants.  The Company may, but shall not be obligated to unless
requested by a majority of the Holders, obtain, at its expense, a certificate of
a firm of independent public accountants of recognized  standing selected by the
Board of Directors  setting  forth the Per Share Warrant Price and the number of
Warrant Shares after such adjustment or the effect of such modification.        

        3.7 If the Board of Directors of the Company  shall declare any dividend
or other  distribution  with  respect  to the  Common  Stock  other  than a cash
distribution out of earned surplus, the Company shall mail notice thereof to the
Holders of the Warrants not less than  fifteen (15)  business  days prior to the
record date fixed for determining  stockholders  entitled to participate in such
dividend or other distribution.                                                 

        3.8 If, as a result of an  adjustment  made  pursuant to this Section 3,
the Holder of any Warrant  thereafter  surrendered  for  exercise  shall  become
entitled to receive shares of two or more classes of capital stock, the Board of
Directors (whose  determination  shall be conclusive and shall be described in a
written  notice to the Holder of any  Warrant  promptly  after such  adjustment)
shall  determine the  allocation of the adjusted Per Share Warrant Price between
or among shares or such classes of capital stock.                               

4. Fully Paid  Stock;  Taxes.  The Company  agrees  that shares of Common  Stock
delivered  upon the exercise of this Warrant shall at the time of such delivery,
be validly issued and outstanding, fully paid and nonassessable, and not subject
to preemptive  rights or rights of first refusal,  and the Company will take all
such actions as may be  necessary to assure that the par value or stated  value,
if any,  per share of the Common Stock is at all times equal to or less than the
then Per Share Warrant Price.  The Company further  covenants and agrees that it
will pay, when due and payable, any and all Federal and state stamp,            

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original issue or similar taxes imposed upon the Company which may be payable in
respect of the issue of any Warrant Share or any certificate thereof.           

5.      Registration Under Securities Act of 1933.                              

        5.1 Company Registration. On or before the one hundred eightieth (180th)
day after the  Initial  Closing,  the  Company  shall  use its best  efforts  to
prepare,  file  with the SEC,  and  cause to  become  effective  a  registration
statement  on form  SB-2 (or in the  event  Form  SB-2 is not  available  to the
Company,  such  other  form as may be  available  for use by the  Company)  (the
"Registration Statement") relating to the Warrant Shares.                       

        5.2 Maintenance.  The Company shall use its best efforts to maintain the
effectiveness of the registration statement filed under Subsections 5.1(a) until
the earlier of: (a) the date on which all the Warrant Shares have been sold; and
(b) the second anniversary of the effective date of such Registration Statement;
provided,  however, that unless all of the Warrant Shares held by a holder as of
such first anniversary could then be sold in a single  transaction in accordance
with Rule 144 under the Securities Act without exceeding the volume  limitations
thereof, if the Company receives written notice from the Holder or the holder of
Warrant  Shares  that the  Holder  of  Warrant  Shares  may be  deemed  to be an
"affiliate" of the Company for purposes of the Securities  Act, the date in this
Section 5.2 shall be  extended  until the Holder of Warrant  Shares  advises the
Company that it no longer believes it may be deemed such an "affiliate."        

        5.3 Expenses of  Registration.  All  Registration  Expenses  incurred in
connection with any registration,  qualification or compliance  pursuant to this
Section 5 shall be borne by the  Company;  and,  unless  otherwise  stated,  all
underwriting  discounts and selling commissions  applicable to the sale relating
to securities  registered by the Holder of Warrant  Shares shall be borne by the
Holder  of  Warrant  Shares  pro rata on the  basis of the  number  of shares so
registered.                                                                     

        5.4  Registration   Procedures.   In  the  case  of  each  registration,
qualification or compliance  effected by the Company pursuant to this Section 5,
the Company will keep each Holder and each holder of Warrant  Shares  advised in
writing as to the initiation of each registration,  qualification and compliance
and as to the completion  thereof.  At its expense the Company will furnish such
number of  prospectuses  and other  documents  incident  thereto  as a Holder or
holder of Warrant Shares from time to time may reasonably request.              

5.5    Indemnification.                                         

               (a) The Company will, and does hereby undertake to, indemnify and
hold harmless each Holder of Warrant Shares,  each of their officers,  directors
and partners,  and each person  controlling such Holder of Warrant Shares within
the  meaning  of  Section  15 of the  Securities  Act,  with  respect  to  which
registration,  qualification  or compliance  has been effected  pursuant to this
Section  5, and each  underwriter,  if any,  and each  person who  controls  any
underwriter  within the meaning of Section 15 of the Securities Act, against all
expenses,  claims,  losses,  damages  and  liabilities  (or  actions  in respect
thereof),  including settlement of any litigation,  commenced or threatened,  to
which they may become  subject  under the  Securities  Act, the Exchange Act, or
other  federal or state law,  arising out of or based on  compliance  with,  any
untrue statement (or alleged untrue statement) of a material fact contained in  

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any registration statement, prospectus (preliminary or final), offering circular
or other  document  or  amendments  thereto,  or arising  out of or based on any
omission (or alleged  omission) to state  therein a material fact required to be
stated  therein or necessary  to make the  statements  therein,  in light of the
circumstances in which they were made, not misleading,  or arising out of or any
violation by the Company of any federal,  state or common law rule or regulation
applicable  to the  Company and  relating to action or inaction  required of the
Company in connection with any such  registration,  qualification or compliance,
and will reimburse each such Holder of Warrant  Shares,  each of their officers,
directors  and  partners,  and each  person  controlling  such Holder of Warrant
Shares, each such underwriter and each person who controls any such underwriter,
for any legal and any other  expenses  reasonably  incurred in  connection  with
investigating, preparing or defending any such claim, loss, damage, liability or
action,  provided  that the  Company  will not be liable in any such case to the
extent that any such claim, loss, damage,  liability or expense arises out of or
is based on any untrue  statement  or omission or alleged  untrue  statement  or
omission,  made in reliance  upon and in  conformity  with  written  information
furnished  to the  Company by an  instrument  executed by such Holder of Warrant
Shares or underwriter expressly for use in connection with such registration.   

               (b) Each Holder of Warrant  Shares will,  if  securities  held by
such  Holder are  included  in the  securities  as to which  such  registration,
qualification  or compliance is being effected,  indemnify and hold harmless the
Company,  each  of its  directors  and  officers,  agents  and  employees,  each
underwriter,  if any, of the Company's securities covered by such a registration
statement,  each person who controls the Company or such underwriter  within the
meaning of  Section  15 of the  Securities  Act,  and each other such  Holder of
Warrant Shares,  each of their officers,  directors and partners and each person
controlling  such Holder of Warrant  Shares  within the meaning of Section 15 of
the Securities  Act,  against all claims,  losses,  damages and  liabilities (or
actions in respect thereof to which they may become  subject)  arising out of or
based on any untrue  statement (or alleged untrue  statement) of a material fact
contained in any such registration statement,  prospectus,  offering circular or
other document,  or amendments thereto, or any omission (or alleged omission) to
state  therein a material  fact  required  to be stated  therein in light of the
circumstances  in which  they were made,  or  necessary  to make the  statements
therein, not misleading,  and will reimburse the Company, such Holder of Warrant
Shares, such directors,  officers, persons,  underwriters or control persons for
any  legal  or  any  other  expenses  reasonably  incurred  in  connection  with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent,  that such untrue statement (or
alleged  untrue  statement)  or omission  (or alleged  omission) is made in such
registration  statement,  prospectus,  offering  circular  or other  document in
reliance  upon and in  conformity  with  written  information  furnished  to the
Company by an instrument executed by such Holder of Warrant Shares expressly for
use  in  connection  with  such  registration;   provided,   however,  that  the
obligations  of such Holder of Warrant Shares  hereunder  shall be limited to an
amount equal to the proceeds to each such holder of Warrant Shares from the sale
of such Warrant Shares as contemplated herein.                                  

               (c) Each party entitled to indemnification  under this Subsection
5.5 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
deliver written notice to the Indemnifying  Party of commencement  thereof.  The
Indemnifying Party, at its sole option, may participate in or assume the defense
of any such claim or any litigation  resulting therefrom with counsel reasonably
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at Indemnified Party's expense.                                 

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               (d) The  indemnification  provided  for under this  Warrant  will
remain in full force and effect  regardless of any  investigation  made by or on
behalf of the Indemnified Party or any officer,  director or controlling  person
of such Indemnified Party and will survive the transfer of securities registered
under the Registration  Statement.  The  Indemnifying  Party also agrees to make
such  provisions,  as are  reasonably  requested by an  Indemnified  Party,  for
contribution to such party in the event the Indemnifying Party's indemnification
is  unavailable  for any reason.  The failure of any  Indemnified  Party to give
notice as  provided  herein  shall not  relieve  the  Indemnifying  Party of its
obligations  under this  Section 5.5 except to the extent  that such  failure to
give notice shall materially and adversely affect the Indemnifying  Party in the
defense of any such  litigation.  No  Indemnifying  Party, in the defense of any
such claim or  litigation  shall,  except with the  consent of each  Indemnified
Party,  consent to entry of any judgment or enter into any settlement which does
not include as an unconditional  term a release from all liability in respect to
such claim or litigation by the claimant or plaintiff to such Indemnified Party.

        5.6 Information by Holder. Each Holder of Warrant Shares included in any
registration shall furnish to the Company such information regarding such Holder
of Warrant Shares and the distribution proposed by such Holder of Warrant Shares
as the  Company  may  reasonably  request in writing and as shall be required in
connection with any  registration,  qualification  or compliance  referred to in
this Section 5.                                                                 

        5.7 Rule 144 Reporting.  With a view to making available the benefits of
certain rules and  regulations  of the SEC which may at any time permit the sale
of the Warrant Shares to the public without registration,  the Company agrees to
use its best efforts to:                                                        

               (a) Make and keep public  information  available,  as those terms
are understood  and defined in Rule 144 under the  Securities  Act, at all times
after the date of this Warrant;                                                 

               (b) File with the SEC in a timely  manner all  reports  and other
documents  required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and   

               (c)  Furnish  to the  Holder  of  Warrant  Shares,  upon  written
request,   a  written   statement  as  to  its  compliance  with  the  reporting
requirements of said Rule 144, and of its compliance with the Securities Act and
the Exchange  Act; the Company shall provide  forthwith  upon written  request a
copy of the most recent  annual or  quarterly  report of the  Company,  and such
other  reports and  documents  of the Company as a Holder of Warrant  Shares may
reasonably  request  in  availing  itself of any rule or  regulation  of the SEC
allowing  a  Holder  of  Warrant  Shares  to sell any  such  securities  without
registration.                                                                   

        5.8 "Market  Stand-Off"  Agreement.  Each  Holder  agrees not to sell or
otherwise  transfer or dispose of the Warrant  Shares held by such Holder during
the one  hundred  and  twenty  (120) day period  commencing  on the date of this
Warrant.                                                                        

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6.      Investment Intent; Limited Transferability; Restrictive Legend.         

        6.1  The  Holder  represents,   by  accepting  this  Warrant,   that  it
understands  that this Warrant and any  securities  obtainable  upon exercise of
this Warrant have not been registered for sale under Federal or state securities
laws and are  being  offered  and  sold to the  Holder  pursuant  to one or more
exemptions  from the  registration  requirements  of such  securities  laws. The
Holder understands that it must bear the economic risk of its investment in this
Warrant and any  securities  obtainable  upon  exercise  of this  Warrant for an
indefinite  period of time,  as this Warrant and such  securities  have not been
registered  under Federal or state  securities laws and therefore cannot be sold
unless  subsequently  registered under such laws,  unless an exemption from such
registration is available.                                                      

        6.2 This Warrant may not be sold, transferred,  assigned or hypothecated
by the Holder except in compliance  with the provisions of the  Securities  Act.
The  Company  may treat the  registered  Holder of this  Warrant  as the  Holder
appears on the Company's  books at any time as the Holder for all purposes.  The
Company  shall permit any Holder of a Warrant or his duly  authorized  attorney,
upon written request during ordinary business hours, to inspect and copy or make
extracts  from its  books  showing  the  registered  holders  of  Warrants.  Any
assignment permitted hereunder shall be made by surrender of this Warrant to the
Company at its principal office with the form of assignment attached hereto duly
executed. In such event, the Company shall, without charge,  execute and deliver
a new  Warrant  or  Warrants  in the  name  of the  assignee(s)  named  in  such
instrument of assignment  and this Warrant shall be promptly  cancelled.  In the
case of a partial assignment of this Warrant, the Company shall, without charge,
execute  and  deliver a new Warrant in the name of the Holder for that number of
Warrants not so assigned. All Warrants issued upon the transfer or assignment of
this Warrant will be dated the same date as this Warrant,  and all rights of the
holder thereof shall be identical to those of the Holder.                       

        6.3 Unless a  registration  statement is in effect  covering the Warrant
Shares when issued,  each Warrant Share, when issued,  shall include a legend in
substantially the following form:                                               

     THESE SHARES HAVE NOT BEEN REGISTERED  UNDER THE SECURITIES ACT OF 1933, AS
     AMENDED (THE  "SECURITIES  ACT") OR UNDER ANY STATE  SECURITIES LAW AND MAY
     NOT BE SOLD,  OFFERED  FOR  SALE,  TRANSFERRED,  PLEDGED,  HYPOTHECATED  OR
     OTHERWISE ASSIGNED EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT RELATING
     TO THE SECURITIES WHICH IS EFFECTIVE UNDER THE SECURITIES ACT, OR (ii) RULE
     144 PROMULGATED  UNDER THE SECURITIES ACT OR (iii) AN OPINION OF COUNSEL OR
     OTHER  EVIDENCE  SATISFACTORY  TO THE  COMPANY  AND  ITS  COUNSEL  THAT  AN
     EXEMPTION FROM THE  REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS IS AVAILABLE.                        

7. Loss, etc., of Warrant.  Upon receipt of evidence satisfactory to the Company
of the loss, theft,  destruction or mutilation of this Warrant, and of indemnity
reasonably  satisfactory to the Company, if lost, stolen or destroyed,  and upon
surrender  and  cancellation  of this Warrant,  if mutilated,  the Company shall
execute  and  deliver  to the  Holder a new  Warrant  of like  date,  tenor  and
denomination.                                                                   

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8. Warrant Holder Not Stockholder.  Except as otherwise  provided  herein,  this
Warrant  does not  confer  upon the Holder any right to vote or to consent to or
receive  notice as a  stockholder  of the  Company,  as such,  in respect of any
matters whatsoever,  or any other rights or liabilities as a stockholder,  prior
to the exercise hereof.                                                         

9. Notices. Any communications specifically required hereunder to be in writing,
if sent to SJ Capital,  will be mailed,  delivered or telefaxed and confirmed to
it at SJ Capital, 601 California Street,  Suite 1300, San Francisco,  CA, 94108,
Att:  Stephen  Jizmagian,  with a copy to Coudert  Brothers,  530 Lytton Avenue,
Suite 300, Palo Alto, CA 94301, Att: Greg L. Pickerel, Esq.; if sent to a Holder
of Warrant Shares other than SJ Capital, shall be mailed, delivered or telefaxed
and  confirmed  to the last  known  address  of such  Holder of  Warrant  Shares
appearing  in the records of the Company;  and if sent to the  Company,  will be
mailed,  delivered or telefaxed and  confirmed to it at 100  Shoreline  Highway,
Suite 190A, Mill Valley,  California 94941,  Att: Fred Thompson,  with a copy to
300 Capitol Mall, Suite 1100, Sacramento,  California 95814, Att: Eric J. Stiff,
Esq.                                                                            

10.  Headings.  The headings of this  Warrant have been  inserted as a matter of
convenience and shall not affect the construction hereof.                       

11.  Applicable  Law.  This  Warrant  shall  be  governed  by and  construed  in
accordance with the law of the State of California  without giving effect to the
principles of conflicts of law thereof.                                         

12. Assignment. This Warrant shall be binding upon the Company and its successor
and  assigns and shall  inure to the  benefit of Holder and its  successors  and
assigns.  The  Holder  shall  notify the  Company  upon the  assignment  of this
Warrant.                                                                        

        IN WITNESS WHEREOF,  the Company has caused this Warrant to be signed by
its President and its corporate seal to be hereunto  affixed and attested by its
Secretary this ___ day of _____, 2000.                                          

DBS INDUSTRIES, INC.

                                      By: __________________________
                                      Name: Fred W. Thompson
                                Title: President

ATTEST:                                                                         

------------------------                                                        
Secretary                                                       

[Corporate Seal]                                                                

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SUBSCRIPTION

        The  undersigned,  _________________,  pursuant to the provisions of the
foregoing Warrant,  hereby agrees to subscribe for and purchase  _______________
shares of the Common Stock, par value $.0004 per share, of DBS Industries,  Inc.
covered by said  Warrant,  and makes  payment  therefor in full at the price per
share provided by said Warrant.                                                 

Dated: ______________ Signature: _____________________                          

                                       Address: ______________________

INSTRUCTIONS FOR REGISTRATION OF COMMON STOCK                                   

Name _____________________________________                                      
(Please typewrite or print in block letters)                    

Address____________________________________                                     

Social Security No./Taxpayer ID No.                                             

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              ASSIGNMENT

        FOR VALUE RECEIVED ____________ hereby sells, assigns and transfers unto
______ _____________ the foregoing Warrant and all rights evidenced thereby, and
does  irrevocably  constitute  and appoint  ____________________,  attorney,  to
transfer said Warrant on the books of DBS Industries, Inc.                      

Dated: _______________Signature: _____________________                          

                                        Address: _______________________

              PARTIAL ASSIGNMENT

        FOR VALUE RECEIVED ____________ hereby sells, assigns and transfers unto
______ _____________ the right to purchase _____ shares of the Common Stock, par
value  $.0004 per  share,  of DBS  Industries,  Inc.  covered  by the  foregoing
Warrant,  and a  proportionate  part of said  Warrant  and the rights  evidenced
thereby,  and  does  irrevocably  constitute  and  appoint  ___________________,
attorney,  to transfer that part of said Warrant on the books of DBS Industries,
Inc.                                                                            

Dated: _______________Signature: _____________________                          

                                        Address: _______________________

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Filing Submission 0001001277-00-000219 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

DBS Industries Inc – ‘SB-2/A’ on 8/10/00 – EX-4

On: Thursday, 8/10/00, at 5:28pm ET · Accession #: 1001277-0-219 · File #: 333-41690

Previous ‘SB-2’: ‘SB-2’ on 7/18/00 · Next & Latest: ‘SB-2’ on 1/11/02

Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2Filing Table of Contents

EX-4 — Exhibit 4.3

Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents