Exhibit 4.1
December 3, 2001
Xxxx Xxxxxx
Chief Financial Officer
Starbase Corporation
0 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Dear Xx. Xxxxxx:
Reference is made to the engagement letter between Starbase Corporation
("Starbase") and UBS Warburg LLC ("UBS Warburg") dated January 29, 2001 (the
"Engagement Letter"). Capitalized terms shall have the same meanings ascribed to
them in the Engagement Letter, except as otherwise defined herein.
It is hereby agreed that, effective as of the date hereof, the
Engagement Letter shall be amended and supplemented as follows. In lieu of the
Transaction Fee of $1,000,000 listed in Section 2 of the Engagement Letter and
the expenses detailed in the Invoice to Starbase dated March 19, 2001, Starbase
agrees to pay the following fees and expenses to UBS Warburg:
1. $150,000 payable in cash to UBS Warburg immediately upon
completion by Starbase of its currently-contemplated equity
financing (the "Equity Financing"), as partial payment of the
Transaction Fee, pursuant to wire instructions given by UBS
Warburg;
2. $32,000 payable in cash to UBS Warburg immediately upon
completion by Starbase of the Equity Financing, for expenses
incurred by UBS Warburg in relation to the Transaction, pursuant
to wire instructions given by XXX Xxxxxxx; and
3. As payment for the remaining $850,000 of the Transaction Fee, the
Company will issue to UBS Warburg shares of registered common
stock of Starbase equal to $850,000, based on a 20 percent (20%)
discount to the trading price of Starbase's stock on the trading
day preceding the date the Company will file a registration
statement with the Securities Exchange Commission (the "SEC") to
register the new shares to be issued to UBS Warburg (the
"Registration Statement"). The Company will file the Registration
Statement on the thirty-first day following the filing of the
Equity Financing Registration Statement (as defined below);
provided, however, that the Company shall not be obligated to
cause the Registration Statement to be declared effective by the
SEC prior to the thirty-first day following the date that the
registration statement to be filed by the Company to register
shares of common stock issuable in connection with the Equity
Financing (the "Equity Financing Registration Statement") has
been declared effective by the SEC. The Company and UBS Warburg
agree that UBS Warburg shall retain its claim for the remaining
$850,000 of the Transaction Fee, payable in cash, until such time
as the certificates representing the registered stock is
delivered to UBS Warburg.
4. UBS Warburg hereby agrees that on any trading day it shall not
sell such number of shares of common stock that exceeds twenty
percent (20%) of the daily trading volume of the Company's common
stock as reported by
Bloomberg Financial Markets on the trading day immediately
preceding such date of sale.
Except as provided herein, the Engagement Letter shall remain unchanged
and in full force and effect. This amendment shall be governed by, and construed
in accordance with the laws of the State of New York, and may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement.
Please confirm that the foregoing is in accordance with your
understanding by executing and returning to us a copy of this letter, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
UBS Warburg LLC
By: _________________________ By: _________________________
Name: Xxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Executive Director Title: Associate Director
Accepted and agreed to as of
the date first above written:
Starbase Corporation
By: ___________________________
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
