SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of the date of
acceptance set forth below, is entered into by and between STARBASE CORPORATION,
a Delaware corporation, with headquarters located at 00000 XxxXxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 ("Company"), and the undersigned (the
"Buyer").
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are executing and delivering this
Agreement in accordance with and in reliance upon the exemption from securities
registration afforded, INTER ALIA, by Rule 506 under Regulation D ("Regulation
D") as promulgated by the United States Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"), and/or
Section 4(2) of the 1933 Act; and
WHEREAS, the Buyer wishes to purchase, upon the terms and subject to
the conditions of this Agreement, Series E Preferred Stock (the "Preferred
Stock"), of the Company which will be convertible into shares of Common Stock,
$.01 par value per share of the Company (the "Common Stock"), upon the terms and
subject to the conditions of such Preferred Stock (the Common Stock and the
Preferred Stock sometimes referred to herein as the "Securities"), and subject
to acceptance of this Agreement by the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
a. PURCHASE. The undersigned hereby agrees to initially purchase from
the Company shares of Preferred Stock, in the amount set forth on
the signature page of this Agreement, out of a total offering of
$3,750,000 of such Preferred Stock, and having the terms and
conditions set forth in the certificate of designation of Series E
Preferred Stock to the Certificate of Incorporation of the Company
attached hereto as ANNEX I (the "Certificate of Designation"). The
purchase price for the Preferred Stock shall be as set forth on the
signature page hereto and shall be payable in United States Dollars.
b. FORM OF PAYMENT. The Buyer shall pay the purchase price for the
Preferred Stock by delivering immediately available good funds in
United States Dollars to the escrow agent (the "Escrow Agent")
identified in the Escrow Agreement attached hereto as ANNEX II (the
"Escrow Agreement") as set forth below. Promptly following payment
by the Buyer to the Escrow Agent of the purchase price of the
Preferred Stock, the Company shall deliver certificate(s)
representing the Preferred Stock duly executed on behalf of the
Company to the Escrow Agent. By signing this Agreement, the Buyer
and the Company, and subject to acceptance by the Escrow Agent, each
agrees to all of the terms and conditions of, and becomes a party
to, the Escrow Agreement, all of the provisions of which are
incorporated herein by this reference as if set forth in full.
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c. METHOD OF PAYMENT. Payment into escrow of the purchase price for the
Preferred Stock shall be made by wire transfer of funds to:
CITIBANK N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Account Name: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
Attorney Trust Account
Account No.: 00000000
Citibank ABA No.: 000000000
Not later than 1:00 p.m., New York time, on the date the Company shall have
accepted this Agreement and returned a signed counterpart of this Agreement to
the Escrow Agent by facsimile, the Buyer shall deposit with the Escrow Agent the
aggregate purchase price for the Preferred Stock, in currently available funds.
Time is of the essence with respect to such payment, and failure by the Buyer to
make such payment, shall allow the Company to cancel this Agreement.
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
a. Without limiting Buyer's right to sell the Common Stock pursuant to
the Registration Statement, the Buyer is purchasing the Preferred
Stock and will be acquiring the shares of Common Stock issuable upon
conversion of the Preferred Stock for its own account for investment
only and not with a view towards the public sale or distribution
thereof and not with a view to or for sale in connection with any
distribution thereof;
b. The Buyer is (i) an "accredited investor" as that term is defined in
Rule 501 of the General Rules and Regulations under the 1933 Act by
reason of Rule 501(a)(3), and (ii) experienced in making investments
of the kind described in this Agreement and the related documents,
(iii) able, by reason of the business and financial experience of
its officers (if an entity) and professional advisors (who are not
affiliated with or compensated in any way by the Company or any of
its affiliates or selling agents), to protect its own interests in
connection with the transactions described in this Agreement, and
the related documents, and (iv) able to afford the entire loss of
its investment in the Securities;
c. All subsequent offers and sales of the Preferred Stock and the
shares of Common Stock issuable upon conversion of the Preferred
Stock (the "Shares" or "Common Stock") by the Buyer shall be made
pursuant to registration of the Shares under the 1933 Act or
pursuant to an exemption from registration;
d. The Buyer understands that the Preferred Stock are being offered and
sold, and the Shares are being offered, to it in reliance on
specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is
relying upon the truth and accuracy of, and the Buyer's compliance
with, the representations, warranties, agreements, acknowledgments
and understandings of the Buyer set forth herein in order to
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determine the availability of such exemptions and the eligibility of
the Buyer to acquire the Preferred Stock and to receive an offer of
the Shares;
e. The Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the
Preferred Stock and the offer of the Shares which have been
requested by the Buyer, including ANNEX V hereto. The Buyer and its
advisors, if any, have been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory
answers to any such inquiries. Without limiting the generality of
the foregoing, the Buyer has also had the opportunity to obtain and
to review the Company's (1) Annual Report on Form 10-K for the
fiscal year ended March 31, 1997, (2) Quarterly Report on Form 10-Q
for the fiscal quarters ended September 30, 1997, June 30, 1997,
December 31, 1996 and September 30, 1996, (3) Forms 8-K dated
January 27, 1997, September 9, 1996 and August 16, 1996, and (4)
Form S-3/A dated [October __, 1997] (the "Company's SEC Documents").
f. The Buyer understands that its investment in the Securities involves
a high degree of risk;
g. The Buyer understands that no United States federal or state agency
or any other government or governmental agency has passed on or made
any recommendation or endorsement of the Securities;
h. This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms,
subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium and other similar laws affecting
the enforcement of creditors' rights generally;
i. Neither the Buyer, nor any affiliate of the Buyer, has any present
intention of entering into, any put option, short position, or other
similar position with respect to the Preferred Stock or the Shares.
j. Notwithstanding the provisions hereof or of the Preferred Stock, in
no event (except with respect to an automatic conversion of the
Preferred Stock as provided in the Certificate of Designation) shall
the holder be entitled to convert any shares of Preferred Stock to
the extent after such conversion, the sum of (1) the number of
shares of Common Stock beneficially owned by the Buyer and its
affiliates (other than shares of Common Stock which may be deemed
beneficially owned through the ownership of the unconverted portion
of the Preferred Stock), and (2) the number of shares of Common
Stock issuable upon the conversion of the Preferred Stock with
respect to which the determination of this proviso is being made,
would result in beneficial ownership by the Buyer and its affiliates
of more than 4.99% of the outstanding shares of Common Stock. For
purposes of the proviso to the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended (the "1934
Act"), except as otherwise provided in clause (1) of such proviso.
3. COMPANY REPRESENTATIONS, ETC.
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The Company represents and warrants to the Buyer that:
a. CONCERNING THE SHARES. There are no preemptive rights of any
stockholder of the Company, as such, to acquire the Common Stock.
b. REPORTING COMPANY STATUS. The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware. The Company has registered its Common Stock
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Common Stock is listed and
traded on the Nasdaq SmallCap Market. Except as set forth in ANNEX V
hereto, the Company has received no notice, either oral or written,
with respect to the continued eligibility of the Common Stock for
such listing.
c. AUTHORIZED SHARES. The Company has sufficient authorized and
unissued Shares as may be reasonably necessary to effect the
conversion of the Preferred Stock. The Shares have been duly
authorized and, when issued upon conversion of, or as interest on,
the Preferred Stock, will be duly and validly issued, fully paid and
non-assessable and will not subject the holder thereof to personal
liability by reason of being such holder.
d. SECURITIES PURCHASE AGREEMENT; REGISTRATION RIGHTS AGREEMENT AND
STOCK. This Agreement and the Registration Rights Agreement, the
form of which is attached hereto as Annex IV (the "Registration
Rights Agreement"), and the transactions contemplated thereby, have
been duly and validly authorized by the Company, this Agreement has
been duly executed and delivered by the Company and this Agreement
is, and the Registration Rights Agreement, when executed and
delivered by the Company, will be, valid and binding agreements of
the Company enforceable in accordance with their respective terms,
subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium, and other similar laws affecting
the enforcement of creditors' rights generally; and the Preferred
Stock will be duly and validly authorized and, when executed and
delivered on behalf of the Company in accordance with this
Agreement, will be a valid and binding obligation of the Company in
accordance with its terms, subject to general principles of equity
and to bankruptcy, insolvency, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally.
e. NON-CONTRAVENTION. The execution and delivery of this Agreement and
the Registration Rights Agreement by the Company, the issuance of
the Securities, and the consummation by the Company of the other
transactions contemplated by this Agreement, the Registration Rights
Agreement, and the Preferred Stock do not and will not conflict with
or result in a breach by the Company of any of the terms or
provisions of, or constitute a default under (i) the articles of
incorporation or by-laws of the Company, (ii) any indenture,
mortgage, deed of trust, or other material agreement or instrument
to which the Company is a party or by which it or any of its
properties or assets are bound, including any listing agreement for
the Common Stock except as herein set forth, (iii) to its knowledge,
any existing applicable law, rule, or regulation or any applicable
decree, judgment, or (iv) to its knowledge, order of any court,
United States federal or state regulatory body, administrative
agency, or other governmental body having jurisdiction over the
Company or any of its properties or assets, except such conflict,
breach or default which would not have a material adverse effect on
the transactions contemplated herein. .
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f. APPROVALS. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization,
or stock exchange or market or the Stockholders of the Company is
required to be obtained by the Company for the issuance and sale of
the Securities to the Buyer as contemplated by this Agreement,
except such authorizations, approvals and consents that have been
obtained.
g. SEC FILINGS. None of the SEC Filings with the Securities and
Exchange Commission since the filing of the 10-K on June 30, 1997
contained, at the time they were filed, any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements made therein in
light of the circumstances under which they were made, not
misleading. Except as set forth on Annex V hereto, the Company has
since [January 1, 1997] timely filed all requisite forms, reports
and exhibits thereto with the Securities and Exchange Commission.
h. ABSENCE OF CERTAIN CHANGES. Since [January 1, 1997], there has been
no material adverse change and no material adverse development in
the business, properties, operations, financial condition, or
results of operations of the Company, except as disclosed in Annex V
or in the documents referred to in Section 2(e) hereof.
i. FULL DISCLOSURE. There is no fact known to the Company (other than
general economic conditions known to the public generally) or as
disclosed in the documents referred to in Section 2(e), that has not
been disclosed in writing to the Buyer that (i) would reasonably be
expected to have a material adverse effect on the business or
financial condition of the Company or (ii) would reasonably be
expected to materially and adversely affect the ability of the
Company to perform its obligations pursuant to this Agreement.
j. ABSENCE OF LITIGATION. Except as set forth in ANNEX V hereto, and in
the documents referred to in Section 2(e), which the Buyer has
reviewed, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending
or, to the knowledge of the Company, threatened against or affecting
the Company, wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the business or financial
condition of the Company or the transactions contemplated by this
Agreement or any of the documents contemplated hereby or which would
adversely affect the validity or enforceability of, or the authority
or ability of the Company to perform its obligations under, this
Agreement or any of such other documents.
k. ABSENCE OF EVENTS OF DEFAULT. Except as set forth in ANNEX V hereto
and Section 3(e), no Event of Default, as defined in the respective
agreement to which the Company is a party, and no event which, with
the giving of notice or the passage of time or both, would become an
Event of Default (as so defined), has occurred and is continuing,
which would have a material adverse effect on the Company's
financial condition or results of operations.
l. PRIOR ISSUES. Except as set forth in Annex V, during the twelve (12)
months preceding the date hereof, the Company has not issued any
convertible securities. The presently outstanding unconverted
principal amount of each such issuance as at [June 30, 1997] are set
forth in ANNEX V.
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4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
a. TRANSFER RESTRICTIONS. The Buyer acknowledges that (1) the Preferred
Stock have not been and are not being registered under the
provisions of the 1933 Act and, except as provided in the
Registration Rights Agreement, the Shares have not been and are not
being registered under the 1933 Act, and may not be transferred
unless (A) subsequently registered thereunder or (B) the Buyer shall
have delivered to the Company an opinion of counsel, reasonably
satisfactory in form, scope and substance to the Company, to the
effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration; (2) any
sale of the Securities made in reliance on Rule 144 promulgated
under the 1933 Act may be made only in accordance with the terms of
said Rule and further, if said Rule is not applicable, any resale of
such Securities under circumstances in which the seller, or the
person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the 1933 Act, may require
compliance with some other exemption under the 1933 Act or the rules
and regulations of the SEC thereunder; and (3) neither the Company
nor any other person is under any obligation to register the
Securities (other than pursuant to the Registration Rights
Agreement) under the 1933 Act or to comply with the terms and
conditions of any exemption thereunder.
b. RESTRICTIVE LEGEND. The Buyer acknowledges and agrees that the
Preferred Stock, and, until such time as the Common Stock has been
registered under the 1933 Act as contemplated by the Registration
Rights Agreement and sold pursuant to an effective registration
statement ("Registration Statement"), the Shares issued to the
Holder upon conversion of the Preferred Stock shall bear a
restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the Preferred
Stock and such Shares):
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO
THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
c. REGISTRATION RIGHTS AGREEMENT. The parties hereto agree to enter
into the Registration Rights Agreement, in substantially the form
attached hereto as ANNEX IV, on or before the Closing Date.
d. FILINGS. The Company undertakes and agrees to make all necessary
filings in connection with the sale of the Preferred Stock to the
Buyer under any United States laws and regulations, or by any
domestic securities exchange or trading market, and to provide a
copy thereof to the Buyer promptly after such filing.
e. REPORTING STATUS. So long as the Buyer beneficially owns any of the
Preferred Stock, the Company shall file all reports required to be
filed with the SEC pursuant to Section 13 or 15(d) of the 1934 Act,
and the Company shall not terminate its status as an issuer required
to file reports under the 1934 Act even if the 1934 Act or the rules
and regulations
II-14
thereunder would permit such termination.
f. USE OF PROCEEDS. The Company will use the proceeds from the sale of
the Preferred Stock (excluding amounts paid by the Company for legal
fees and finder's fees in connection with the sale of the Preferred
Stock) for internal working capital purposes, and shall not,
directly or indirectly, use such proceeds for any loan to or
investment in any other corporation, partnership enterprise or other
person.
g. AVAILABLE SHARES. The Company shall have at all times authorized and
reserved for issuance, free from preemptive rights, shares of Common
Stock sufficient to yield the number of shares of Common Stock
issuable at conversion as may be required to satisfy the conversion
rights of the Buyer pursuant to the terms and conditions of the
Preferred Stock.
h. WARRANTS. The Company agrees to issue to Buyer within thirty (30)
days after the Closing Date, non-transferable warrants (the
"Warrants") for one-half share of Common Stock for each $1.25 amount
of Preferred Stock. Such Warrants shall bear an exercise price per
share of Common Stock equal to $1.80 per share through the one-year
anniversary of the Closing Date and $2.00 per share through the
second anniversary of the Closing Date, and shall expire after the
second anniversary of the Closing Date, in the form annexed hereto
as ANNEX VI, together with registration rights granted pursuant to
the Registration Rights Agreement.
5. TRANSFER AGENT INSTRUCTIONS.
a. Promptly following the delivery by the Buyer of the aggregate
purchase price for the Preferred Stock in accordance with Section
1(c) hereof, the Company will irrevocably instruct its transfer
agent to issue Common Stock from time to time upon conversion of the
Preferred Stock in such amounts as specified from time to time by
the Company to the transfer agent, bearing the restrictive legend
specified in Section 4(b) of this Agreement prior to registration of
the Shares under the 1933 Act, registered in the name of the Buyer
or its nominee and in such denominations to be specified by the
Buyer in connection with each conversion of the Preferred Stock. The
Company warrants that no instruction other than such instructions
referred to in this Section 5 and stop transfer instructions to give
effect to Section 4(a) hereof prior to registration and sale of the
Shares under the 1933 Act will be given by the Company to the
transfer agent and that the Shares shall otherwise be freely
transferable on the books and records of the Company as and to the
extent provided in this Agreement, the Registration Rights
Agreement, and applicable law. Nothing in this Section shall affect
in any way the Buyer's obligations and agreement to comply with all
applicable securities laws upon resale of the Securities. If the
Buyer provides the Company with an opinion of counsel reasonably
satisfactory to the Company that registration of a resale by the
Buyer of any of the Securities in accordance with clause (1)(B) of
Section 4(a) of this Agreement is not required under the 1933 Act,
the Company shall (except as provided in clause (2) of Section 4(a)
of this Agreement) permit the transfer of the Securities and, in the
case of the Shares, promptly instruct the Company's transfer agent
to issue one or more certificates for Common Stock without legend in
such name and in such denominations as specified by the Buyer.
b. The Company will permit the Buyer to exercise its right to convert
the Preferred Stock by
II-15
260107-1
telecopying an executed and completed Notice of Conversion to the
Company and delivering within three business days thereafter, the
original Notice of Conversion and the Preferred Stock representing
the Shares to the Company by express courier, with a copy to the
transfer agent. Each date on which a Notice of Conversion is
telecopied to and received by the Company in accordance with the
provisions hereof shall be deemed a Conversion Date. The Company
will transmit the certificates representing the Shares issuable upon
conversion of any shares of Preferred Stock (together with the
certificates representing the Preferred Stock not so converted) to
the Buyer via express courier, by electronic transfer or otherwise,
within three business days after receipt by the Company of the
original Notice of Conversion and the certificate representing the
Preferred Stock to be converted (the "Delivery Date").
6. DELIVERY INSTRUCTIONS.
The Preferred Stock shall be delivered by the Company to the Escrow
Agent pursuant to Section 1(b) hereof, or a delivery against payment basis on
the Closing Date.
7. CLOSING DATE.
The date and time of the issuance and sale of the Preferred Stock
(the "Closing Date") shall occur no later than 1:00 P.M., New York time on the
date of the fulfillment or waiver of all closing conditions pursuant to Sections
8 and 9, or such other mutually agreed to time. The closing shall occur on such
date at the offices of the Escrow Agent. Notwithstanding anything to the
contrary contained herein, the Escrow Agent will be authorized to release the
funds representing the Purchase Price for the Preferred Stock, and the Preferred
Stock only upon satisfaction of the conditions set forth in Section 8 hereof.
8. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Buyer understands that the Company's obligation to sell the
Preferred Stock on the Closing Date to the Buyer pursuant to this Agreement is
conditioned upon:
a. The receipt and acceptance by the Company of such Agreement as
evidenced by execution of this Agreement by the Company for at least
($ ) Dollars in liquidation value of the Preferred Stock (or such
lesser amount as the Company, in its sole discretion, shall
determine);
b. Delivery by the Buyer to the Escrow Agent of good funds as payment
in full of an amount equal to the purchase price for the Preferred
Stock in accordance with Section 1(c) hereof;
c. The accuracy on the Closing Date of the representations and
warranties of the Buyer contained in this Agreement as if made on
the Closing Date and the performance by the Buyer on or before the
Closing Date of all covenants and agreements of the Buyer required
to be performed on or before the Closing Date;
d. There shall not be in effect any law, rule or regulation prohibiting
or restricting the transactions contemplated hereby, or requiring
any consent or approval which shall not have been obtained.
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9. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the
Preferred Stock on the Closing Date is conditioned upon:
a. Acceptance by Buyer of an Agreement for the sale of Preferred Stock,
as indicated by execution of this Agreement;
b. Delivery by the Company to the Escrow Agent of the Preferred Stock
in accordance with this Agreement;
c. The accuracy in all material respects on the Closing Date of the
representations and warranties of the Company contained in this
Agreement as if made on the Closing Date and the performance by the
Company on or before the Closing Date of all covenants and
agreements of the Company required to be performed on or before the
Closing Date; and
d. On the Closing Date, the Buyer having received [an opinion of
counsel for the Company, dated the Closing Date, in form, scope and
substance reasonably satisfactory to the Buyer, to the effect set
forth in Annex III attached hereto, and] the Registration Rights
Agreement annexed hereto as Annex IV.
10. GOVERNING LAW: MISCELLANEOUS.
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions. A facsimile transmission of this signed
Agreement shall be legal and binding on all parties hereto. This Agreement may
be signed in one or more counterparts, each of which shall be deemed an
original. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement. If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction. This Agreement may
be amended only by an instrument in writing signed by the party to be charged
with enforcement. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
11. NOTICES. Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed effectively
given, (i) on the date delivered, (a) by personal delivery, or (b) if advance
copy is given by fax, (ii) seven business days after deposit in the United
States Postal Service by regular or certified mail, or (iii) three business days
mailing by international express
II-17
courier, with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses, or at such other addresses as a
party may designate by ten days advance written notice to each of the other
parties hereto.
COMPANY: STARBASE CORPORATION
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
PURCHASER: At the address set forth on the signature page of this
Agreement.
ESCROW AGENT: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No. (000) 000-0000
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Company's representations and
warranties shall survive the execution and delivery hereof of this Agreement and
the delivery of the Preferred Stock.
II-18
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Buyer or one of its officers thereunto duly authorized as of the date set forth
below.
AGGREGATE NUMBER OF SHARES OF
PREFERRED STOCK TO BE PURCHASED:
PURCHASE PRICE OF SUCH PREFERRED STOCK: $
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities Purchase
Agreement to be duly executed on its behalf this day of , 1998.
___________________________________________________________________________
Address Printed Name of Subscriber
_______________________________ By: ________________________________
Telecopier No. ________________ (Signature of Authorized Person)
________________________________
Printed Name and Title
_______________________________
Jurisdiction of Incorporation
or Organization
This Agreement has been accepted as of the date set forth below.
STARBASE CORPORATION
By:____________________________
Title:_________________________
Date:__________________________
II-19
ANNEX I CERTIFICATE OF DESIGNATION
ANNEX II ESCROW AGREEMENT
ANNEX III OPINION OF COUNSEL
ANNEX IV REGISTRATION RIGHTS AGREEMENT
ANNEX V COMPANY DISCLOSURE MATERIALS
ANNEX VI FORM OF WARRANT
II-20
ANNEX V
COMPANY DISCLOSURE
------------------
3.b Reporting Company Status - The Company has received notice that it
has until January 9, 1998 to comply with certain NASD maintenance
requirements. As of January 8, 1998, the Company has complied with
the compliance request.
3.g SEC Filings - None
3.h Absence of Certain Changes - None
3.j Absence of Litigation - None
3.k Absence of Events of Default - None
3l Prior Issues
August 1997 - $1.5M of 6% Convertible Debentures
September 1997 - $1.6 M of 6% Convertible Debentures
January 1998 - $1.5 M of 0% Convertible Preferred Stock (Series D)
Outstanding Convertible Debentures as of January 8, 1997 are
$670,000.
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