SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of the date of acceptance set
forth below, by and between GLOBALINK, INC., a Delaware corporation, with
headquarters located at 0000 Xxx Xxxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
(the "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 reliance upon the exemption from securities
registration provided by Regulation D under the Securities Act of 1933, as
amended (the "1933 Act"); and
WHEREAS, the Buyer wishes to purchase, upon the terms and
subject to the conditions of this Agreement, shares of non-voting convertible
preferred stock of the Company which are convertible into shares of Common
Stock, $.01 par value (the "Common Stock"), of the Company and in connection
therewith to receive warrants to purchase shares of Common Stock, 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 hereto
agree as follows:
1. AGREEMENT TO PURCHASE; WARRANTS; PURCHASE PRICE.
(a) Purchase. The Buyer hereby agrees to purchase from the
Company the number of shares (the "Preferred Shares") of Series A-3 Convertible
Preferred Stock, $.01 par value (the "Preferred Stock"), of the Company set
forth on the signature page of this Agreement, having the terms and conditions
as set forth in the form of Certificate of Designations attached hereto as Annex
I (the "Certificate of Designations") at the price per share and for the
aggregate purchase price set forth on the signature page of this Agreement. The
Buyer hereby agrees that certificates for a number of Preferred Shares equal to
one third of the total number of Preferred Shares shall bear each of the three
legends set forth in Section 9(a)(ii) of the terms of the Preferred Stock in the
Certificate of Designations. In addition to issuance of the Preferred Stock, the
Company shall issue to the Buyer on the Closing Date (as herein defined)
warrants to purchase shares of Common Stock, such warrants to be in the form
attached hereto as Annex II (the "Warrants"). The number of shares of Common
Stock initially purchasable upon exercise of the Warrants to be issued to the
Buyer on the Closing Date shall be 85,568. The shares of Common Stock issuable
upon conversion of the Preferred Stock are referred to herein as the "Conversion
Shares." The shares of Common Stock issuable upon exercise of the Warrants are
referred to herein as the "Warrant Shares." The Conversion Shares and the
Warrant Shares are referred to herein collectively as the "Common Shares." The
Common Shares, the Preferred Shares and the Warrants are referred to herein
collectively as the "Securities."
(b) Form of Payment. The Buyer shall pay the purchase price
for the Preferred Shares by delivering good funds in United States Dollars to
the escrow agent (the "Escrow Agent") identified in the Joint Escrow
Instructions attached hereto as Annex III (the "Joint Escrow Instructions").
Such delivery of funds shall be made against delivery by the Company of the
certificates for the Preferred Shares registered in the name of the Buyer.
Promptly following payment by the Buyer to the Escrow Agent of the purchase
price of the Preferred Shares, but in no event later than the Closing Date, the
Company shall deliver certificates for the Warrants, duly executed by the
Company and registered in the name of the Buyer, to the Escrow Agent. By signing
this Agreement, the Buyer and the Company each
agrees to all of the terms and conditions of, and becomes a party to, the Joint
Escrow Instructions, all of the provisions of which are incorporated herein by
this reference as if set forth in full.
(c) Method of Payment. Payment of the purchase price for the
Preferred Shares shall be made by wire transfer of funds to:
Citibank, N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA#000000000
For credit to A/C#37179446
For credit to the account of Xxxxx X. Xxxxx
Attorney Escrow Account
Reference: Pangaea/Globalink
Not later than 4:00 p.m., New York City time, on the date which is three New
York Stock Exchange trading days after the Company shall have accepted this
Agreement and returned a signed counterpart of this Agreement to the Buyer, the
Buyer shall deposit with the Escrow Agent an amount equal to the aggregate
purchase price for the Preferred Shares.
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) The Buyer is acquiring the Preferred Shares and Warrants
for its own account for investment only and not with a view towards the public
sale or distribution thereof;
(b) The Buyer is 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);
(c) All subsequent offers and sales of the Securities by the
Buyer shall be made pursuant to registration of the Securities being offered and
sold under the 1933 Act or pursuant to an exemption from registration;
(d) The Buyer understands that the Preferred Shares and the
Warrants are being offered and sold, and the Common 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 and in the Prospective Purchaser Questionnaire, a
true and accurate copy of which has been delivered by the Buyer to the Company
(the "Questionnaire"), in order to determine the availability of such exemptions
and the eligibility of the Buyer to acquire the Preferred Shares and the
Warrants and to receive an offer of the Common 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 Shares and
the Warrants and the offer of the Common Shares which have been requested by the
Buyer. 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 had the opportunity to obtain and to review the Company's (1) Annual
Report on Form 10-KSB
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for the fiscal year ended December 31, 1995, (2) Quarterly Reports on Form
10-QSB for the fiscal quarters ended March 31, 1996, June 30, 1996 and September
30, 1996, (3) Current Report on Form 8-K, dated March 28, 1996, (4) definitive
Proxy Statement for its 1996 Annual Meeting of Stockholders, and (5) Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1996, in each case
as filed with the SEC, and (6) the Company's press release dated February 21,
1997. The Buyer understands that its investment in the Securities involves a
high degree of risk;
(f) The Buyer understands that the offering of the Preferred
Shares and the Warrants is not part of an offering which is subject to any
condition respecting the minimum amount of securities to be sold and that such
offering is not being made on an "all-or-none" basis; and 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; and
(g) 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.
3. COMPANY REPRESENTATIONS, WARRANTIES, ETC.
The Company represents and warrants to, and covenants and
agrees with, the Buyer that:
(a) Concerning the Securities. The Securities have been duly
authorized; the Preferred Shares, when issued and paid for in accordance with
this Agreement, and the Common Shares, when issued upon conversion of the
Preferred Shares and upon exercise of the Warrants, as the case may be, 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. There are
no preemptive rights of any stockholder of the Company, as such, to acquire any
of the Common Shares. The Common Stock is listed for trading on the American
Stock Exchange, Inc. (the "AMEX") and no suspension of trading in the Common
Stock is in effect.
(b) Securities Purchase Agreement; Registration Rights
Agreement; Warrants. This Agreement, the Registration Rights Agreement, the form
of which is attached hereto as Annex IV (the "Registration Rights Agreement")
and the Warrants, have been duly and validly authorized by the Company, this
Agreement has been duly executed and delivered on behalf of the Company and this
Agreement is and the Registration Rights Agreement and the Warrants, 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.
(c) Non-contravention. The execution and delivery of this
Agreement, the Registration Rights Agreement and the Warrants by the Company and
the consummation by the Company of the issuance of the Preferred Shares and the
Warrants and the other transactions contemplated by this Agreement, the
Registration Rights Agreement and the terms of the Warrants 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, the certificate of incorporation
or by-laws of the Company, or 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, or any applicable law, rule or
regulation or any applicable decree, judgment or order of
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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.
(d) Approvals. No authorization, approval or consent of or
filing with 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 as contemplated by this Agreement, other than (1) approval of the
listing of the Common Shares by the AMEX and (2) the requirements of any
applicable blue sky laws.
(e) SEC Reporting Status and Filings. The Company has filed
with the SEC all reports and other information required to be filed under
Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act"). Since December 31, 1995, the Company has not filed any reports
or other information with the SEC pursuant to Sections 13(a), 14 and 15(d) of
the 1934 Act other than the reports and other information identified in Section
2(e) hereof.
(f) Information Provided. The information provided by or on
behalf of the Company to the Buyer and referred to in Section 2(e) of this
Agreement does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading.
(g) Absence of Certain Changes. Since December 31, 1995, there
has been no material adverse change and no material adverse development in the
business, properties, operations, condition (financial or other), results of
operations or prospects of the Company, except as disclosed in the documents
referred to in Section 2(e) hereof.
(h) Absence of Litigation. 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 or any of its subsidiaries,
threatened against or affecting the Company or any of its subsidiaries, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the properties, business, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a whole 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.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
(a) Transfer Restrictions. The Buyer acknowledges that (1) the
Preferred Shares and the Warrants 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 Common 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 such resale of 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
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pursuant to the Registration Rights Agreement) under the 1933 Act or to comply
with the terms and conditions of any exemption thereunder (other than pursuant
to Section 4(d) hereof and pursuant to the Registration Rights Agreement).
(b) Restrictive Legend. The Buyer acknowledges and agrees that
the certificates for the Preferred Shares and the Warrants and, until such time
as the Common Shares have been registered under the 1933 Act as contemplated by
the Registration Rights Agreement, the certificates for the Common Shares, may
bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates for the
Common Shares and the Warrants):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
acquired for investment and may not be sold, transferred or assigned in
the absence of an effective registration statement for the securities
under the Securities Act of 1933, as amended, or an opinion of counsel
that registration is not required under said Act.
Once the Registration Statement required to be filed by the Company pursuant to
Section 2 of the Registration Rights Agreement has been declared effective,
thereafter (1) upon request of the Buyer the Company will substitute
certificates without restrictive legend for certificates for any Common Shares
issued prior to the date such Registration Statement is declared effective by
the SEC and remove any stop-transfer restriction relating thereto promptly, but
in no event later than three days after surrender of such certificates by the
Buyer and (2) the Company shall not place any restrictive legend on certificates
for Common Shares issued on conversion of the Preferred Shares or exercise of
the Warrants or impose any stop-transfer restriction thereon.
(c) Registration Rights Agreement. The parties hereto agree
to enter into the Registration Rights Agreement on or before the Closing Date.
(d) Form D. The Company agrees to file a Form D with respect
to the Securities as required under Regulation D and to provide a copy thereof
to the Buyer promptly after such filing. The Buyer agrees to cooperate with the
Company in connection with such filing and, upon request of the Company, to
provide all information relating to the Buyer reasonably required for such
filing.
(e) AMEX Listing; Reporting Status. The Company has filed a
listing application for the Common Shares with the AMEX and shall provide
evidence of such filing to the Buyer. The Company shall obtain the approval of
the listing of the Common Shares, subject to official notice of issuance, by the
AMEX on or prior to the Closing Date. So long as the Buyer beneficially owns any
of the Preferred Shares, the Warrants or the Common Shares, 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 thereunder would permit such termination.
(f) Use of Proceeds. The Company will use the proceeds from
the sale of the Preferred Shares for the Company's internal working capital
purposes and not for the purpose of any investment in or loan to any other
corporation, partnership, enterprise or other person; provided, however, that
the proceeds may be used for loans to companies which are wholly-owned
subsidiaries of the Company at all times when such loans are outstanding.
(g) Blue Sky Laws. On or before the Closing Date, the Company
shall take such action as shall be necessary to qualify, or to obtain an
exemption for, the Preferred Shares and the Warrants for sale to the Buyer
pursuant to this Agreement and the Common Shares for
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issuance to the Buyer upon conversion of the Preferred Shares and on exercise of
the Warrants under such of the securities or "blue sky" laws of jurisdictions in
the United States as shall be applicable to the sale of the Preferred Shares and
the Warrants to the Buyer pursuant to this Agreement and the issuance of the
Common Shares to the Buyer on exercise of the Warrants. The Company shall
furnish copies of all filings, applications, orders and grants or confirmations
of exemptions relating to such securities or "blue sky" laws on or prior to the
Closing Date.
(h) Certain Expenses. Whether or not any closing occurs, the
Company shall pay or reimburse the Buyer for all reasonable legal fees and
expenses of counsel to the Buyer for the preparation and negotiation of, and
closing under, this Agreement up to an amount of $10,000. The obligations of the
Company under the provisions of this Section 4(h) shall be in addition to the
obligation of the Company for expenses under the Registration Rights Agreement.
(i) Certain Issuances of Securities. The Company will not
issue any shares of Common Stock or shares of any series of preferred stock or
other securities convertible into Common Stock of the Company for less than the
greater of the book or market value of such Common Stock, if such issuance would
be integrated as a transaction with the offer and sale of the Preferred Shares
and the Warrants to the Buyer and the conversion or exercise thereof for
purposes of the requirement for Stockholder Approval (as defined in the
Certificate of Designations) under the rules of the AMEX and require Stockholder
Approval or a waiver thereof from the AMEX, unless the Company obtains
Stockholder Approval or such waiver thereof from the AMEX, as and to the extent
required under of the rules of the AMEX.
(j) Certain Future Financings. The Company shall not issue any
equity securities or securities convertible into, exchangeable for or otherwise
entitling the holder to acquire, any equity securities of the Company for
consideration less than the greater of the book or market value of such equity
securities at the time of issuance (the "New Equity Securities") (i) from and
after the date that this Agreement is executed and delivered by the parties
hereto to and including the 90th day after the Closing Date, without the prior
written consent of the Buyer and (ii) during the period commencing on the 91st
day after the Closing Date to and including the 180th day after the Closing
Date, without giving the Buyer the first right to acquire the New Equity
Securities on substantially the same terms at which the New Equity Securities
are to be offered to other investors; provided, however, that nothing in this
paragraph shall prohibit the Company from issuing securities (x) as part of a
transaction involving a strategic alliance, collaboration, joint venture or
partnership arrangement of the Company, (y) pursuant to compensation plans for
employees, directors, officers, advisers or consultants of the Company or (z)
upon exercise of conversion, exchange, purchase or similar rights issued,
granted or given by the Company and outstanding as of the date of this
Agreement.
5. TRANSFER AGENT INSTRUCTIONS; CONVERSION PROCEDURE.
(a) Transfer Agent Instructions. Promptly following the
delivery by the Buyer of the aggregate purchase price for the Preferred Shares
in accordance with Section 1(c) hereof, and in any event prior to the Closing
Date, the Company will: (1) irrevocably instruct American Stock Transfer & Trust
Company, as transfer agent and registrar (the "Transfer Agent"), by letter in
the form attached hereto as Annex V (the "Transfer Agent Instruction"), to issue
certificates for the Common Shares from time to time upon conversion of the
Preferred Shares in such amounts as specified from time to time to the Transfer
Agent in the Notices of Conversion surrendered in connection with such
conversions and referred to in Section 5(b) of this Agreement, (2) irrevocably
instruct the Transfer Agent pursuant to the Transfer Agent Instruction to issue
certificates for the Common Shares from time to time upon exercise of the
Warrants in such amounts as specified from time to time to the Transfer Agent in
the Form of Subscription, in the form attached to the Warrants, surrendered in
connection with such exercises and (3) appoint the Transfer Agent the conversion
agent for the Preferred Stock and the exercise
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agent for the Warrants. The Company agrees to deliver the Transfer Agent
Instruction substantially in the form attached hereto as Annex V on or prior to
the Closing Date. The certificates for the Common Shares may bear the
restrictive legend specified in Section 4(b) of this Agreement prior to
registration of the resale of the Common Shares under the 1933 Act and shall be
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 Preferred Shares
or exercise of the Warrants, as the case may be. The Company warrants that no
instruction other than (x) such instructions referred to in this Section 5(a),
(y) stop transfer instructions to give effect to Section 4(a) hereof prior to
registration of the resale of the Common Shares under the 1933 Act and (z) the
instructions required by Section 3(n) of the Registration Rights Agreement will
be given by the Company to the Transfer Agent and that the Common Shares shall
otherwise be freely transferable on the books and records of the Company as and
to the extent provided in this Agreement. Nothing in this Section 5(a) shall
limit 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 in form, scope
and substance to the Company that registration of a resale by the Buyer of any
of the Preferred Shares or the Warrants in accordance with clause (1)(B) of
Section 4(a) of this Agreement is not required under the 1933 Act, the Company
shall permit the transfer of such Preferred Shares or Warrants. Nothing in this
Section 5(a) shall limit the obligations of the Company under Section 3(n) of
the Registration Rights Agreement.
(b) Conversion Procedure. In connection with the exercise of
conversion rights relating to the Preferred Shares, the Buyer or any subsequent
holder of the Preferred Shares shall complete, sign and furnish to the Transfer
Agent, with a copy to the Company, a Notice of Conversion in the form attached
hereto as Annex VI, which shall be deemed to satisfy all requirements of the
Certificate of Designations (a "Conversion Notice"). As set forth in Section
9(c)(2) of the Certificate of Designations, the number of Common Shares to be
issued in connection with a particular conversion of Preferred Shares is, absent
manifest error, conclusively the number of Common Shares stated in the
applicable Conversion Notice. If in connection with a particular conversion of
Preferred Shares the Company determines that manifest error has been made by
virtue of the conversion price or other information set forth in the applicable
Conversion Notice, the Company shall have the right immediately to notify the
Transfer Agent of such error (with a copy of such notice given to the Buyer by
telephone line facsimile transmission), which notice shall state the number of
Common Shares in dispute, and,
notwithstanding such notice from the Company, shall direct the Transfer Agent to
issue and deliver the number of Common Shares not in dispute as and when
required by the Certificate of Designations. If the Company shall have notified
the Transfer Agent of any such error, the Company shall, on the date such notice
is given, submit the dispute to the Company's independent auditors (the
"Auditors") for determination and shall instruct the Auditors to resolve such
dispute and to notify the Company, the Transfer Agent, and the converting holder
of Preferred Shares within (i) one business day after such dispute is submitted
to the Auditors or (ii) if the Company shall have notified the Transfer Agent of
such alleged error on the same day it received the Conversion Notice, within two
business days after such dispute is submitted to the Auditors. Immediately after
receipt of timely notice of the Auditors' determination, the Company shall
instruct the Transfer Agent to issue to the converting holder any additional
Common Shares to which such holder is entitled based on the determination of the
Auditors. If the Auditors shall fail to notify the Transfer Agent within three
business days after the applicable Conversion Notice is given to the Company and
the Transfer Agent, then the Company shall instruct the Transfer Agent to issue,
within three business days after the receipt of the applicable Conversion
Notice, to the converting holder any additional Common Shares to which such
holder is entitled based on the applicable Conversion Notice. Such immediate
action shall be taken by the Company to assure that there shall be full
compliance with the Company's unqualified obligation that all Common Shares
issuable on such conversion be issued by the due date therefor as provided in
the Certificate of Designations.
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6. STOCK DELIVERY INSTRUCTIONS.
The Preferred Shares and the Warrants shall be delivered by
the Company to the Escrow Agent pursuant to Section 1(b) hereof on a delivery
against payment basis at the closing.
7. CLOSING DATE.
The date and time of the issuance and sale of the Preferred
Shares and the issuance of the Warrants (the "Closing Date") shall be 12:00
noon, New York City time, on the date which is three New York Stock Exchange
trading days after the date on which the Buyer has deposited the purchase price
for the Preferred Shares with the Escrow Agent in accordance with Section 1(c)
hereof, or such other mutually agreed to time. The closing shall occur on the
Closing Date at the offices of the Escrow Agent.
8. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
AND ISSUE.
The Buyer understands that the Company's obligation to issue
the Preferred Shares and the Warrants to the Buyer pursuant to this Agreement is
conditioned upon:
(a) The receipt and acceptance by the Company of this
Agreement as evidenced by execution of this Agreement by the Company and
delivery of an executed counterpart of this Agreement to the Buyer or its legal
counsel;
(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
Shares in accordance with Section 1(c) hereof; and
(c) The accuracy on the Closing Date of the representations
and warranties of the Buyer contained in this Agreement and in the Questionnaire
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.
9. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the
Preferred Shares and the Warrants on the Closing Date is conditioned upon:
(a) Delivery by the Company to the Escrow Agent of the
Preferred Shares and the Warrants in accordance with this Agreement;
(b) The accuracy 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 such Closing Date;
(c) Receipt by the Buyer on the Closing Date of 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 VII
attached hereto;
(d) The Common Shares shall have been approved for listing,
subject to official notice of issuance, by the AMEX; and
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(e) The Transfer Agent shall have acknowledged receipt of
the Transfer Agent Instruction.
10. MISCELLANEOUS.
(a) This Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Virginia.
(b) This Agreement may be executed in counterparts and by the
parties hereto on separate counterparts, all of which together shall constitute
one and the same instrument. A facsimile transmission of this Agreement bearing
a signature on behalf of a party hereto shall be legal and binding on such
party.
(c) The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) 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.
(e) No failure or delay by any party in exercising any right
or remedy under this Agreement or otherwise, and no course of dealing between
the parties, shall operate as a waiver thereof or amendment of this Agreement,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or exercise of any other right or
power.
(f) Neither this Agreement nor any term thereof (including
this paragraph) may be amended, changed, waived, discharged or terminated unless
such amendment, change, waiver, discharge or termination is in a writing signed
by the party to be charged with enforcement.
(g) Any notices required or permitted to be given under the
terms of this Agreement shall be sent by mail or delivered personally (which
shall include telephone line facsimile transmission) or by courier and shall be
effective five days after being placed in the mail, if mailed, or upon receipt,
if delivered personally or by courier, in each case addressed to a party at such
party's address shown in the introductory paragraph or on the signature page of
this Agreement, as the case may be (facsimile number 000-000-0000, in the case
of the Company, and as set forth on the signature page hereof, in the case of
the Buyer), or such other address as a party shall have provided by notice to
the other party in accordance with this provision. The Buyer hereby designates
as its address and telephone line facsimile transmission number for any notice
required or permitted to be given to the Buyer pursuant to the Certificate of
Designations or the Registration Rights Agreement the address and telephone line
facsimile transmission number set forth on the signature page hereof, until the
Buyer shall by notice to the Company designate another address or telephone line
facsimile transmission number for such purpose.
(h) The Buyer shall have the right to assign its rights and
obligations under this Agreement with respect to the purchase of all or any
portion of the Preferred Shares and the receipt of the Warrants to another
investment fund, provided such assignee, by written instrument duly executed by
such assignee, assumes all obligations of the Buyer hereunder with respect to
the purchase of the portion of the Preferred Shares and the Warrants so assigned
and makes the same representations and warranties with respect thereto as the
Buyer makes in this Agreement, whereupon the Buyer shall be relieved of any
further obligations, responsibilities and liabilities with respect to the
purchase of all or the portion of the Preferred Shares and the
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Warrants the obligation for the purchase of which has been so assigned. In the
case of any such assignment, the Company shall agree in writing with such
assignee to make available to such assignee the benefits of the Registration
Rights Agreement with respect to the Common Shares issuable upon conversion of
the Preferred Shares and on exercise of the Warrants with respect to which the
purchase under this Agreement has been so assigned.
(i) The respective representations, warranties, covenants and
agreements of the Buyer and the Company contained in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement shall survive the
delivery of payment for the Preferred Shares and shall remain in full force and
effect regardless of any investigation made by or on behalf of them or any
person controlling or advising any of them.
(j) This Agreement and its Annexes set forth the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, whether written or oral,
with respect thereto.
(k) The Buyer shall have the right to terminate this Agreement
by giving notice at any time at or prior to the Closing Date if:
(1) the Company shall have failed, refused, or been unable at
or prior to the date of such termination of this Agreement to perform
any of its obligations hereunder;
(2) any other condition of the Buyer's obligations hereunder
is not fulfilled; or
(3) the closing shall not have occurred on a Closing Date on
or before March 31, 1997, other than solely by reason of a breach of
this Agreement by the Buyer.
Any such termination shall be effective upon the giving of notice thereof by the
Buyer. Upon such termination, the Buyer shall have no further obligation to the
Company hereunder and the Company shall remain liable for any breach of this
Agreement or the other documents contemplated hereby which occurred on or prior
to the date of such termination.
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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.
NUMBER OF PREFERRED SHARES: 2,502
PRICE PER SHARE: $1,000.00
AGGREGATE PURCHASE PRICE: $2,502,000.00
NAME OF BUYER: PANGAEA FUND LIMITED
SIGNATURE ____________________________
Title: ____________________________
Date: ____________________________
Address: Xxxxxxxxxx Xxxxx
#000 Xxxx Xxx Xxxxxx
Xxxxxx, Xxxxxxx
Facsimile Number: (000) 000-0000
This Agreement has been accepted as of the date set forth
below.
GLOBALINK, INC.
By: _______________________________
Title: ______________________________
Date: ______________________________
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