STARBASE CORPORATION
UNIT SUBSCRIPTION AGREEMENT
THIS UNIT SUBSCRIPTION AGREEMENT dated as of January 8, 1998
by and between StarBase Corporation, a Delaware corporation (the "COMPANY"), and
________, a __________ who resides in ________________ (the "PURCHASER").
W I T N E S S E T H :
WHEREAS, the Company is offering to sell, upon the terms and
subject to the conditions hereinafter set forth, 1,200,000 units (the "UNITS"),
each Unit consisting of one share of the Company's Series D Preferred Stock, par
value $0.01 per share (the "SERIES D PREFERRED STOCK"), having the terms and
provisions set forth in the certificate of designation to the Certificate of
Incorporation of the Company, attached hereto as Exhibit A (the "Certificate of
Designation"), with each share of Series D Preferred Stock convertible into a
share or shares of common stock, par value $0.01 per share (the "SHARES"), and
one warrant to purchase 0.4166 share of Common Stock, substantially in the form
of Exhibit B hereto (each, a "WARRANT"); and
WHEREAS, the Purchaser desires to purchase, upon such terms
and subject to such conditions, the number of Units set forth on the signature
page hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto hereby agree as
follows:
1. PURCHASE AND SALE OF UNITS
1.1 ISSUANCE AND SALE OF UNITS
Upon the terms and subject to the conditions of this Agreement, the Company
shall sell to the Purchaser, and the Purchaser shall purchase from the Company,
at a purchase price, in lawful money of the United States, of $1.25 per Unit,
1,200,000 Units set forth opposite the Purchaser's name on the signature page
hereof for the aggregate purchase price set forth thereon (the "PURCHASE
PRICE"). The Purchaser shall specify on the signature page hereof the address
for any notices given hereunder. The offer and sale of the Units are being
effected in accordance with and in reliance on the provisions of Regulation D
under the United States Securities Act of 1933, as amended (the "ACT") and
subsections 35(1)5 and 72(1)(d) of the Ontario Securities Act.
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The Units will be sold in two tranches of $750,000 each. The first tranche
will be funded on the Closing Date (as defined below) and the second tranche
will be funded upon the second business day after the date (the "Additional
Closing Date") the registration statement is declared effective (the
"Registration Effective Date"). The second tranche will be subject to the
following conditions, which may be waived by the Purchaser in its sole and
absolute discretion (1) the daily trading value for the previous 20 days ending
on the day prior to the Registration Effective Date is at least $30,000 and (2)
the closing bid price has been at least $0.88 for each of the five previous
trading days ending on the day prior to the Registration Effective Date.
1.2 OFFERING EXPENSES
Of the Purchase Price so payable by the Purchaser, an amount, not in excess
of $35,000, shall be applied to pay brokerage commissions, attorneys' fees and
disbursements and other expenses incurred in connection with the offer and sale
of the Units hereunder. The Purchaser shall pay the legal fees of its counsel,
which fees shall not exceed $5,000 and shall be deducted from the Purchase Price
to be paid on the first tranche.
1.3 CLOSING
Promptly upon the execution and delivery of this Agreement by the Company
and the Purchaser:
a) the Purchaser shall deliver to Xxxxxx Xxxxxx Flattau & Klimpl, LLP,
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, U.S.A.,
Attention: Xxxxxx Xxxx Xxxxxxxx, Esq. (the "CLOSING AGENT"), (i) an executed
copy of the Agreement (or a photocopy or other facsimile thereof) and (ii)
payment of the Purchase Price for the first tranche less $5,000 for legal fees
by wire transfer of immediately available funds to the account specified by the
Closing Agent; and
(b) the Company shall deliver to the Closing Agent or to such person as
directed by the Closing Agent (i) certificates in denominations requested by the
Purchaser registered in the name of the Purchaser or, if the Purchaser shall
have designated a nominee, such nominee, representing the number of shares of
Common Stock included within the Units purchased by the Purchaser hereunder (the
"CERTIFICATES"), (ii) Warrants in denominations requested by the Purchaser to
purchase shares of Common Stock, and (iii) the documents set forth in Section
5.5 hereof.
Promptly upon receipt of the funds and documents required so to be delivered
(the date upon which all such funds and documents are actually received by the
Closing Agent being hereinafter referred to as the "CLOSING DATE"), the Closing
Agent shall (a) deliver the Certificates, Warrants and the documents set forth
in Sections 5.4 and 5.5. hereof to the Purchaser (or its nominee, if any), and
(b) pay over, as directed, the Purchase Price to the Company. Subject to the
conditions set forth in Section 1.1, the provisions of this Section 1.3 shall
apply MUTATIS MUTANDIS to the second tranche funded on the Additional Closing
Date.
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1.4 REGISTRATION
The Common Stock issuable upon conversion of the Series D Preferred Stock
and upon the exercise of the Warrants will be registered for resale no later
than 90 days from the closing date pursuant to a registration statement on Form
S-3. The registration statement is to be filed within 30 days of the closing
date and shall be in a form reasonably satisfactory to the Purchaser. If the
registration statement is not effective within 90 days, the Company will pay an
amount equal to 2% of the Purchase Price of the Units on the 91st day and at the
end of each 30-day period thereafter until the registration statement has been
declared effective.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as
follows:
2.1 ORGANIZATION AND GOOD STANDING
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as now conducted.
2.2 CAPITALIZATION
The authorized capital of the Company consisted of 50,000,000 shares of
Common Stock, of which 16,654,428 shares were issued and outstanding as of
December 31, 1997, of which none is treasury stock, and 10,000,000 shares of
preferred stock, par value $.01 per share (the "PREFERRED STOCK"), of which
3,000,000 shares were designated Series A Preferred Stock, of which none is
issued and outstanding as of November 30, 1997; 2,500,000 shares were designated
Series B Preferred Stock, of which none is issued and outstanding as of November
30, 1997; 366,000 shares were designated Series C Preferred Stock, of which none
is issued and outstanding as of November 30, 1997; and 1,200,000 shares were
designated Series D Preferred Stock, which shares may be issued pursuant to this
Agreement. The number of outstanding shares of Common Stock and Preferred Stock
has not materially changed since November 30, 1997. The outstanding shares of
Common Stock and Preferred Stock are all duly and validly authorized and issued,
fully paid and nonassessable.
2.3 AUTHORIZATION
The Company has all requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement by the Company does not, and the
performance of its obligations hereunder will not, violate or conflict with any
provision of the Company's Certificate of Incorporation or By-laws or any
material agreement to which the Company is a party. All corporate action on the
part of the Company required for the authorization, execution and delivery of
this Agreement and the
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performance of its obligations hereunder, including the issuance and delivery of
the Units, has been taken. This Agreement has been duly executed and delivered
by the Company, and assuming due execution and delivery by the Purchaser,
constitutes a valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally and (ii) equitable
principles relating to the availability of specific performance, injunctive
relief and other equitable remedies.
2.4 VALID ISSUANCE OF SERIES D PREFERRED D STOCK
The Series D Preferred Stock which is being purchased by the Purchaser
hereunder is duly authorized and, when issued, sold and delivered in accordance
with the terms hereof, will be duly and validly issued, fully paid and
nonassessable, and, based upon the representations of the Purchaser in this
Agreement, will be issued in compliance with the registration requirements of
all applicable federal and state securities laws. The Common Stock issuable upon
conversion of the Series D Preferred Stock and upon the exercise of the Warrants
is duly authorized and has been duly and validly reserved for issuance and, upon
issuance to the Purchaser in accordance with the terms of the Series D Preferred
Stock and the Warrants, will be duly and validly issued, fully paid and
nonassessable, and issued in compliance with the registration requirements of
all applicable federal and state securities laws or exemptions therefrom, as
presently in effect, of the United States.
2.5 GOVERNMENTAL CONSENTS
Except for the filing of the Certificate of Designation with the Secretary
of State of the State of Delaware and the filing of the Form 20 with the
Securities Commission of Ontario, no consent, approval or authorization of,
or designation, declaration or filing on the part of the Company with, any
United States federal or state governmental authority or Nasdaq SmallCap Market
or, to the best knowledge of the Company, with any foreign governmental
authority, is required in connection with the valid execution and delivery of
this Agreement, or the offer, sale or issuance of the Units or the consummation
of any other transaction contemplated hereby.
2.6 OFFERING
Based upon the Purchaser's representations set forth in Section 3 of this
Agreement, the offer, sale and issuance of the Units as contemplated by this
Agreement are exempt from the registration requirements of the Act, and neither
the Company nor any authorized agent acting on its behalf has taken any action
that would cause the loss of such exemption. The offer and sale of the Units is
not a transaction (or any element of a series of transactions) that is part of
any plan or scheme to evade the registration provisions of the Act.
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2.7 FILINGS UNDER THE ACT AND THE SECURITIES EXCHANGE ACT
The Company has timely filed all reports and other documents required to
be filed by it under the Act and the United States Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT") for a period of at least twelve (12)
months prior to the date hereof, and no such document, at the time it was filed,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading. There has been no
material change in the Company since its last filing with the Securities and
Exchange Commission.
2.8 REPORTING COMPANY; NASDAQ LISTING
The Company has registered its Common Stock pursuant to Section 12 of the
Exchange Act and the Common Stock is listed and traded on the Nasdaq SmallCap
Market.
2.9 RESERVATION OF COMMON STOCK
The Company has reserved 2,579,835 shares of Common Stock for issuance
upon exercise of all outstanding options and warrants.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as
follows:
3.1 NATURE OF PURCHASER
[Insert]
3.2 AUTHORIZATION
The Purchaser has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement has
been duly executed and delivered by the Purchaser, and assuming execution and
delivery by the Company, constitutes a valid and legally binding obligation of
the Purchaser enforceable in accordance with its terms, except as limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) equitable principles relating to the availability of specific performance,
injunctive relief and other equitable remedies.
3.3 ACCREDITED OR SOPHISTICATED PURCHASER
The Purchaser is an investor in securities of companies in the development
stage and is able to fend for herself, can bear the economic risk of her
investment and has such
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knowledge and experience in financial or business matters that she is capable of
evaluating the merits and risks of the investment in the Units.
3.4 ECONOMIC RISK
The Purchaser has carefully reviewed and understands the risks of, and
other considerations relating to, a purchase of the Units and an investment
in the Company. The Purchaser has such experience in business and financial
matters that she is capable of evaluating the risks of her investment and
determining the suitability of her investment. The Purchaser has received and
has carefully read this Agreement. The Purchaser has consulted the Purchaser's
own financial, legal and tax advisors with respect to the economic, legal and
tax consequences of an investment in the Units and has not relied on the
Company, its officers, directors, affiliates or professional advisors for advice
as to such consequences.
3.5 INDEPENDENT INVESTIGATION; ADVERTISEMENTS
The Purchaser, in offering to purchase the Units hereunder, has relied
solely upon an independent investigation made by the Purchaser and her
representatives, if any, and has, prior to the date hereof, been given access to
and the opportunity to examine all books and records of the Company, and all
material contracts and documents of the Company. In making her investment
decision to purchase the Units, the Purchaser is not relying on any oral or
written representations or assurances from the Company or any other person or
any representation of the Company or any other person other than as set forth in
this Agreement, or on any information other than contained in the Company's
public filings required under the Act and the Exchange Act. The Purchaser is not
subscribing for the Units as a result of or subsequent to any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media, or broadcast over television or radio, or presented at any
seminar.
3.6 INVESTMENT FOR OWN ACCOUNT
Except as otherwise indicated herein, the Purchaser is the sole party in
interest as to his investment in the Company, and he is acquiring the Units
(including, without limitation, the Series D Preferred Stock, the Common Stock
issued upon conversion of the Series D Preferred or the exercise of a Warrant)
for the Purchaser's own account and has no present agreement, understanding or
arrangement to subdivide, sell, assign, transfer or otherwise dispose of all or
any part of the Units (including, without limitation, the Series D Preferred
Stock, the Common Stock issued upon the conversion of the Series D Preferred
Stock or the exercise of a Warrant) subscribed for to any other person. The
Purchaser represents and warrants that he is purchasing the Units for his
Registered Retirement Savings Plan, account number 550 98866 19.
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3.7 NO GOVERNMENT RECOMMENDATION OR APPROVAL
The Purchaser understands that no United States federal or state agency,
or similar agency of any other country, has reviewed, approved, passed upon
or made any recommendation or endorsement of the Company, this transaction or
the purchase of the Units.
3.8 NO REGISTRATION
The Purchaser understands that the Units, the Common Stock and the
Common Stock issued upon exercise of the Warrants have not been registered under
the Act and are being offered and sold pursuant to Regulation D based in part
upon the representations of the Purchaser contained herein.
3.9 NO SALE IN VIOLATION OF THE SECURITIES LAWS
The Purchaser covenants that she will not knowingly make any sale,
transfer or other disposition of the Units in violation of the Act, the
Exchange Act, or the rules and regulations of the Securities and Exchange
Commission promulgated under any of the foregoing.
3.10 NO LEGAL ADVICE FROM COMPANY
The Purchaser acknowledges that she has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with her own legal
counsel. The Purchaser is relying solely on such counsel and not on any
statements or representations of the Company or any of its agents for legal
advice with respect to the investment or the transactions contemplated by this
Agreement.
4. COMPLIANCE WITH SECURITIES LAWS; COVENANTS
4.1 RESALES SUBJECT TO U.S. SECURITIES LAWS
The Purchaser acknowledges that the Units have not been registered under
the Act, and agrees to resell the Units, the Series D Preferred Stock and the
Warrants included therein and any Common Stock issued upon conversion of the
Series D Preferred Stock or the exercise of the Warrants, only in accordance
with the provisions of Regulation D under the Act, pursuant to registration
under the Act, or pursuant to an available exemption from such registration.
4.2 LEGENDS
Except as set forth in Section 4.5, the Certificates, the Warrants and any
certificate representing shares of Common Stock issued upon conversion of the
Series D Preferred Stock or the exercise of the Warrants before the Registration
Effective Date shall bear in substance
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the following legend, as determined by the Company's counsel, which legend shall
be removed following the Registration Effective Date:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
4.3 FURTHER RESTRICTIONS ON TRANSFER
The Company shall not register any transfer of the Series D Preferred Stock
or any Common Stock issued upon conversion of the Series D Preferred Stock or
the exercise of a Warrant, not made in accordance with the provisions of
Regulation D or other applicable registration or exemption under the Act, and
shall not treat as the owner of such securities, or otherwise accord voting or
dividend rights to, any transferee to whom such securities have been transferred
in contravention of this Agreement; PROVIDED, HOWEVER, that the foregoing
provision shall not apply to the transfer of any Series D Preferred Stock or
Common Stock if the certificates evidencing such securities bear no restrictive
legend.
4.4 STOP TRANSFER INSTRUCTIONS
Subject to Section 4.5, stop transfer instructions have been or will be
provided to the Company's transfer agent to be placed on such transfer agent's
books, records or other documents evidencing the Units so as to restrict the
resale, pledge, hypothecation or other transfer thereof in accordance with the
provisions hereof and the provisions of Regulation D promulgated under the Act.
4.5 TRANSFERABILITY OF COMMON STOCK
At any time after the Registration Effective Date, if the Purchaser
delivers a Notice of Conversion (substantially in the form of Exhibit C hereto)
to the Company, the Company will issue or cause to be issued one or more
certificates representing the shares of Common Stock without a restrictive
legend upon conversion of the Series D Preferred Stock into shares of Common
Stock in accordance with Section 6 of the Certificate of Designation authorizing
the Series D Preferred Stock. The Company warrants that no instructions, other
than those instructions for a stop transfer until the Registration Effective
Date, have been or will be given to the transfer agent. The Company further
warrants that the shares of Common Stock shall be otherwise freely transferable
by the Purchaser to or for the account or benefit of a U.S. Person if such
shares are registered under the Act or an exemption from the registration
requirements of the Act is available.
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4.6 DELIVERY OF STOCK CERTIFICATES UPON CONVERSION
As promptly as practicable on or after receipt of a Notice of Conversion
and in any event within two (2) business days thereafter, the Company at its
expense shall issue to the Purchaser or its nominee a certificate or
certificates for the number of shares of Common Stock issuable upon such
conversion and deliver such certificates forthwith thereafter. If the
certificates are not delivered to the Purchaser or its nominee within five (5)
business days of receipt of the Notice of Conversion, the Company will pay the
Purchaser an amount equal to $500 per day for each delay above the initial two
(2) business days.
4.7 OTHER OFFERS OF CONVERTIBLE SECURITIES
The Company shall be permitted to issue and sell other convertible
securities convertible into Common Stock; PROVIDED, that the purchaser of such
convertible securities shall not be permitted to convert such convertible
securities within the earlier of 120 days of the Closing Date or 30 days after
the Additional Closing Date.
5. CONDITIONS OF PURCHASER'S OBLIGATIONS AT CLOSING AND
ADDITIONAL CLOSING.
The obligations of the Purchaser under Section 1 of this
Agreement are subject to the fulfillment on or before the Closing Date and the
Additional Closing Date of each of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained in Section 2
shall be true in all material respects on and as of the Closing Date and the
Additional Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date and the Additional
Closing Date.
5.2 PERFORMANCE
The Company shall have, in all material respects, performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing
Date and the Additional Closing Date.
5.3 QUALIFICATIONS
All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are
required in connection with the lawful
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issuance and sale of the Units pursuant to this Agreement shall be duly obtained
and effective as of the Closing Date and the Additional Closing Date.
5.4 OPINION OF COUNSEL
The Company shall deliver to the Purchaser at the time of Closing an
opinion letter from counsel to the Company, to the effect that (i) the Company
is incorporated and validly existing under the laws of the State of Delaware;
(ii) the issuance of the Series D Preferred Stock and the issuance of the Common
Stock upon conversion of the Series D Preferred Stock or exercise of the
Warrants have been duly approved by all required corporate action; (iii) the
Series D Preferred Stock, upon payment therefor by Purchaser and delivery in
accordance with the terms hereof, shall be validly issued, fully paid and
nonassessable; (iv) the Common Stock, upon issuance thereof upon conversion of
the Series D Preferred Stock or exercise of the Warrant in accordance with the
terms thereof, shall be validly issued and outstanding, fully paid and
nonassessable; (v) the Common Stock issuable upon conversion of the Series D
Preferred Stock or exercise of the Warrant has been reserved for issuance; (vi)
each of the Agreement, the Registration Rights Agreement and the Warrant is the
legal, valid, and legally binding obligation of the Company, enforceable against
the Company in accordance with their respective terms; and (vii) based in part
upon the representations and warranties of the Company and the Purchaser herein,
the offer and sale of the Series D Preferred Stock and Common Stock underlying
the Series D Preferred Stock and the Warrant to the Purchaser is exempt from the
registration requirements of the Securities Act. With respect to the foregoing
opinions concerning enforcement, counsel may add such qualifications as are
consistent with general practice such as those relating to equitable remedies or
bankruptcy.
5.5 AGREEMENTS
The Company shall deliver to the Purchaser at the time of the closing (a) a
Registration Rights Agreement in the form of the attached hereto Exhibit D,
executed by the Company, (b) an Irrevocable Instructions to Transfer Agent, in
the form attached hereto as Exhibit E, executed by the Company, (c) the
Certificate of Designation certified by the Secretary of State of Delaware, and
(d) an officer's certificate respecting the matters set forth in Sections 5.1
and 5.2.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING AND
ADDITIONAL CLOSING
The obligations of the Company to the Purchaser under this Agreement are
subject to the fulfillment on or before the Closing and Additional Closing of
each of the following conditions:
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6.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Purchaser contained in Section 3
shall be true in all material respects on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the Closing Date.
6.2 PAYMENT OF PURCHASE PRICE
The Purchaser shall have delivered the Purchase Price and documents
specified in Section 1 to the Closing Agent.
6.3 QUALIFICATIONS
All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are
required in connection with the lawful issuance and sale of the Units pursuant
to this Agreement shall be duly obtained and effective as of the Closing.
6.4 AGREEMENTS
The Purchaser shall deliver to the Company a certificate respecting the
matters set forth in Section 6.1.
7. INDEMNIFICATIONS
7.1 INDEMNIFICATION OF THE COMPANY
The Purchaser hereby agrees to indemnify the Company and its directors,
officers, employees, agents, representatives and controlling persons (within the
meaning of that term in Section 15 of the Act) for, and to hold each of them
harmless against, all claims, liabilities, damages, costs or expenses
(including, without limitation, reasonable attorney's fees and expenses) arising
out of or in connection with any breach, or any alleged breach, of any
representation or warranty of the Purchaser, or any covenant or agreement of the
Purchaser set forth herein; PROVIDED, HOWEVER, that the Purchaser will not be
liable in any such case for claims, liabilities, damages, costs or expenses that
a court of competent jurisdiction shall have found in a final judgment to have
arisen primarily from the gross negligence or willful misconduct of the Company.
The Company hereby agrees to indemnify the Purchaser for, and to hold the
Purchaser harmless against, all claims, liabilities, damages, costs or expenses
(including, without limitation, reasonable attorney's fees and expenses) arising
out of or in connection with any breach, or any alleged breach, of any
representation or warranty of the Company or any covenant or agreement of the
Company set forth herein; PROVIDED, HOWEVER, that the Company will not be liable
in any such case for claims, liabilities, damages, costs or expenses that a
court of competent jurisdiction shall have found in a final judgment to have
arisen primarily from the gross negligence or willful misconduct of the
Purchaser.
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7.2 INDEMNIFICATION OF THE CLOSING AGENT
The Company agrees to indemnify the Closing Agent, its partners, employees,
agents and representatives for, and to hold each of them harmless against, all
claims, liabilities, damages, costs or expenses (including, without limitation,
reasonable attorney's fees and expenses) arising out of or in connection with
the performance of its obligations pursuant to Section 1.3 hereof.
8. MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of each party herein shall survive the
Closing, notwithstanding any investigation or inquiry made by the other party.
8.2 NOTICES
Any notice hereunder to or upon either party hereto shall be deemed to have
been duly given for all purposes if (a) in writing and sent by (i) messenger or
an overnight courier service against receipt, or (ii) certified or registered
mail, postage paid, return receipt requested, or (b) sent by telegram,
facsimile, telex or similar electronic means, provided that a written copy
thereof is sent on the same day by postage paid first-class mail, to such party
at the following address:
To Purchaser: at its address set forth on the signature page hereof
With a copy to: [Insert]
To the Company at: 00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000 X.X.X.
Attn: President
Fax: (000) 000-0000
With a copy to: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000 U.S.A.
Attn: Xxxxxx Xxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
The date of giving of any such notice shall be, in the case of clause (a)(i) and
the Notice of Conversion, the date of the receipt; in the case of
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clause (a)(ii), five business days after such notice or demand is sent; and, in
the case of clause (b), the business day next following the date such notice is
sent.
8.3 AMENDMENT
Except as otherwise provided herein, no amendment of this Agreement shall
be valid or effective, unless in writing and signing by or on behalf of the
parties hereto.
8.4 WAIVER
No course of dealing or omission or delay on the part of either party
hereto in asserting or exercising any right hereunder shall constitute or
operate as a waiver of any such right. No waiver of any provision hereof shall
be effective, unless in writing and signed by or on behalf of the party to be
charged therewith. No waiver shall be deemed a continuing waiver or waiver in
respect of any other or subsequent breach or default, unless expressly so stated
in writing.
8.5 GOVERNING LAW
This Agreement shall be governed by, and interpreted and enforced in
accordance with, the laws of the State of New York without regard to principles
of choice or conflict of laws.
8.6 JURISDICTION
Each of the parties hereto hereby irrevocably consents and submits to the
jurisdiction of the Supreme Court of the State of New York and the United States
District Court for the Southern District of New York in connection with any
suit, action or other proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby, waives any objection to venue in the
County of New York, State of New York, or such District and agrees that service
of any summons, complaint, notice or other process relating to such suit, action
or other proceeding may be effected in the manner provided by clause (a)(ii) of
Section 8.2.
8.7 REMEDIES
In the event of any actual or prospective breach or default by either party
hereto, the other party shall be entitled to equitable relief, including
remedies in the nature of rescission, injunction and specific performance. All
remedies hereunder are cumulative and not exclusive, and nothing herein shall be
deemed to prohibit or limit either party from pursuing any other remedy or
relief available at law or in equity for such actual or prospective breach or
default, including the recovery of damages.
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8.8 SEVERABILITY
The provisions hereof are severable, and in the event that any provision of
this Agreement shall be determined to be invalid or unenforceable in any respect
by a court of competent jurisdiction, the remaining provisions hereof shall not
be affected, but shall, subject to the discretion of such court, remain in full
force and effect, and any invalid or unenforceable provision shall be deemed,
without further action on the part of the parties hereto, amended and limited to
the extent necessary to render the same valid and enforceable.
8.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and which together shall constitute one and the same
agreement.
8.10 FURTHER ASSURANCES
Each party hereto covenants and agrees promptly to execute, deliver, file
or record such agreements, instruments, certificates and other documents and to
perform such other and further acts as the other party hereto may reasonably
request or as may otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
8.11 ASSIGNMENT
This Agreement, and each right, interest and obligation hereunder, may not
be assigned by either party hereto without the prior written consent of the
other party hereto, and any purported assignment without such consent shall be
void and without effect.
8.12 BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. This
Agreement is not intended, and shall not be deemed, to create or confer any
right or interest for the benefit of any person not a party hereto.
8.13 TITLES AND CAPTIONS
The titles and captions of the Articles and Sections of this Agreement are
for convenience of reference only, and do not in any way define or interpret the
intent of the parties or modify or otherwise affect any of the provisions
hereof.
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8.14 GRAMMATICAL CONVENTIONS
Whenever the context so requires, each pronoun or verb used herein shall be
construed in the singular or the plural sense, and each capitalized term defined
herein and each pronoun used herein shall be construed in the masculine,
feminine or neuter sense.
8.15 NO PRESUMPTIONS
Each party hereto acknowledges that it has participated, with the advice of
counsel, in the preparation of this Agreement. No party hereto is entitled to
any presumption with respect to the interpretation of any provision hereof or
the resolution of any alleged ambiguity herein based on any claim that the other
party hereto drafted or controlled the drafting of this Agreement.
8.16 INCORPORATION BY REFERENCE
The Exhibits hereto are an integral part of this Agreement and are
incorporated in their entirety herein by this reference.
IN WITNESS WHEREOF, the Company and the Purchaser, by their
respective duly authorized officers, have duly executed this Agreement on the
date set forth in the Preamble hereto.
STARBASE CORPORATION
By:_________________________________
Name:
Title:
Number of Units Purchased: ________ PURCHASER:
Purchase Price: $_____________ _____________________________________
[Name]
Address of Purchaser:
Name and address of Nominee (if any):
Address for Notices (if different):
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EXHIBIT A
CERTIFICATE OF DESIGNATION
- 16 -
EXHIBIT B
FORM OF WARRANT
- 17 -
EXHIBIT C
NOTICE OF CONVERSION
_______________ ___, 19__
StarBase Corporation American Stock Transfer & Trust Company
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000 00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn.: Finance Department Attn.: Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxx Xxxxxxxx, Esq.
The undersigned, ________________ (the "HOLDER") hereby gives notice
that it wishes to convert _____________ shares of Series D Preferred Stock (the
"SHARES") of StarBase Corporation (the "ISSUER") held by it into the number of
shares of Common Stock of the Issuer stated below, which have been reserved for
issuance upon such conversion.
Number of shares of Common Stock to be issued: ________________
In accordance with the Irrevocable Instructions to Transfer Agent dated
January __, 1998, please issue the Shares within two (2) business days of
receipt of this Notice of Conversion as follows:
Name: ___________________
Address: ___________________
Deliver to: ___________________
[Holder]
By: _____________________________
Name:
Title:
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EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
- 19 -
EXHIBIT E
FORM OF IRREVOCABLE INSTRUCTIONS TO TRANSFER AGENT
- 20 -
