EXHIBIT 4.1
Name of Subscriber _________________________
SUBSCRIPTION AGREEMENT
Globalink, Inc.
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Ladies and Gentlemen:
I. Subscription. I (sometimes referred to herein as the "Investor") hereby
subscribe for and agree to purchase $_______________ of Units (as defined below)
of Globalink, Inc. ("Company"), a Delaware corporation, on the terms and
conditions described herein and in the Confidential Private Placement Memorandum
("PPM"), dated October 15, 1997 together with all supplements, if any, relating
to this offering. The minimum subscription is $100,000, but ▇. ▇. ▇▇▇▇▇▇▇▇ &
Co., Inc. ("MHM" or "Placement Agent") and the Company have the discretion to
accept subscriptions for less than the minimum. The per-Unit offering price will
be the lower of $1.375 or 85% of the average of the closing bid prices of the
Common Stock ("Unit Offering Price"), as reported by the American Stock
Exchange, on the 10 consecutive trading days ending three business days prior to
the Closing (as defined below). The number of Units I will purchase will be
determined by dividing the amount of my subscription by the Unit Offering Price.
Fractional Units will not be issued; instead, the Company will round up to the
next nearest whole number of Units at no additional cost to me. ▇.▇. ▇▇▇▇▇▇▇▇ &
Co., Inc. is acting as the exclusive placement agent for this offering.
1. Description of Units. Each Unit consists of: (i) one share of the
Company's Common Stock, $.01 par value ("Common Stock"), and (ii) one warrant,
each Warrant to entitle the holder thereof to purchase one share of Common Stock
during the five-year period commencing the Closing at an exercise price equal to
127.27% of the Unit Offering Price (subject to adjustment)
2. Purchase.
(a) I hereby tender to the Company cash or a check made
payable to the order of "▇.▇. ▇▇▇▇▇▇▇▇ & Co., Inc. - Globalink Special Account"
in the amount indicated above, two manually executed copies of this Subscription
Agreement and an executed copy of my Confidential Purchaser Questionnaire.
(b) This offering will continue until the earlier of the
Closing (as defined in Section 4 hereof) or October 31, 1997 unless such latter
date is extended, without notice to the Investor, by mutual consent of MHM and
the Company to a date not later than November 30, 1997 ("Termination Date").
Prior to the earlier of the Closing or the Termination Date, my cash or check
delivered herewith will be held by MHM in a segregated, non-interest bearing
bank account subject to the terms and conditions herein. If subscriptions for at
least $750,000 of Units are not received and accepted by the Company by the
Termination Date, my payment will be returned to me without interest or
deduction. In the event my subscription is accepted and there is a Closing, my
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subscription proceeds shall be released to the Company and the certificates
representing the Common Stock and Warrants will be promptly delivered to my
account at MHM.
3. Acceptance or Rejection of Subscription.
(a) The Company and MHM have the right to reject this
subscription for the Units, in whole or in part for any reason and at any time
prior to a Closing, notwithstanding prior receipt by me of notice of acceptance
of my subscription.
(b) In the event of the rejection of this subscription, my
subscription payment will be promptly returned to me without interest or
deduction and this Subscription Agreement shall have no force or effect.
4. Closing. The closing of this offering shall occur as soon as
practicable after the sale by the Company of Units aggregating at least $750,000
("Closing") as determined jointly by the Company and MHM. The Units subscribed
for herein shall not be deemed issued to or owned by me until two copies of this
Subscription Agreement have been executed by me and countersigned by the Company
and a Closing with respect to such Units has occurred. After the Closing, the
certificates representing the Common Stock and the Warrants will be deposited in
my account with MHM.
5. Disclosure. Because this offering is limited to accredited investors
as defined in Section 2(15) of the Securities Act of 1933, as amended
("Securities Act"), and Rule 501 promulgated thereunder, in reliance upon the
exemption contained in Sections 3(b) or 4(2) of the Securities Act and
applicable state securities laws, the Units are being sold without registration
under the Securities Act. I acknowledge receipt of the PPM and all exhibits
listed therein and represent that I have carefully reviewed and understand the
PPM and its exhibits. I have received all information and materials regarding
the Company that I have requested.
I fully understand the nature of the risks involved in
purchasing the Units and I am qualified by my knowledge and experience to
evaluate investments of this type. I have carefully considered the potential
risks relating to the Company and purchase of its Units and have, in particular,
reviewed each of the risks set forth in the PPM. Both my advisors and I have had
the opportunity to ask questions of and receive answers from representatives of
the Company or persons acting on its behalf concerning the Company and the terms
and conditions of a proposed investment in the Company and my advisors and I
have also had the opportunity to obtain additional information necessary to
verify the accuracy of information furnished about the Company. Accordingly, I
have independently evaluated the risks of purchasing the Units.
6. Registration Rights; Lock-Up.
(a) The Units are being offered pursuant to the PPM to which
this Subscription Agreement is annexed as Exhibit B. The Company agrees with the
Subscriber to register under a registration statement ("Registration Statement")
filed pursuant to the Securities Act and such state "Blue Sky" laws of those
states as are reasonably selected by MHM the re-offer and re-sale of the Common
Stock included in the Units and the Common Stock underlying the Warrants
included in the Units (collectively, the "Registrable Securities") upon the
written demand of at least 51% of the holders of the Registrable Securities
("Majority Holders"). The Company shall use its best efforts to file the
Registration Statement and have it declared effective within 60 days after the
demand of the Majority Holders. The Company shall keep the Registration
Statement effective and current until all the securities registered thereunder
are sold or may be sold without any limitation
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under an appropriate exemption under the Securities Act and the blue sky laws of
the states selected by MHM.
(b) The Company shall bear all the expenses and pay all the
fees it incurs in connection with the preparation, filing, modifying and
amending of the Registration Statement, providing reasonable numbers of the
prospectus contained therein to me and effecting the issuance and transfer of
the Registrable Securities on an expeditious basis.
(c) The Company will indemnify and hold harmless each holder
of the Registrable Securities, the officers and directors of each Holder and
each person, if any, who controls such Holder within the meaning of the
Securities Act or Securities Exchange Act of 1934, as amended ("Exchange Act")
against any losses, claims, damages, or liabilities to which they may become
subject under the Securities Act, the Exchange Act or any state securities law
or regulation (including all reasonable attorneys' fees and other expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever incurred by the indemnified party in any action or proceeding between
the indemnitor and indemnified party or between the indemnified party and any
third party or otherwise) to which any of them may become subject under the
Securities Act, the Exchange Act or any other statute or common law or otherwise
under the laws of foreign countries, arising from such registration statement or
based upon any untrue statement or alleged untrue statement of a material fact
contained in (i) any preliminary prospectus, the registration statement or
prospectus (as from time to time each may be amended and supplemented); (ii) in
any post-effective amendment or amendments or any new registration statement and
prospectus in which it included the Registrable Securities; or (iii) any
application or other document or written communication (collectively called
"application") executed by the Company or based upon written information
furnished by the Company in any jurisdiction in order to qualify the Registrable
Securities under the securities laws thereof or filed with the Securities and
Exchange Commission, any state securities commission or agency, Nasdaq or any
securities exchange; or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, unless
such statement or omission is made in reliance upon, and in strict conformity
with, written information furnished to the Company with respect to the holders
expressly for use in any preliminary prospectus, such registration statement or
prospectus, or any amendment or supplement thereof, or in any application, as
the case may be. The Company agrees promptly to notify the holder of the
Registrable Securities of the commencement of any litigation or proceedings
against the Company or any of its officers, directors or controlling persons in
connection with the issue and sale or resale of the Registrable Securities or in
connection with any such registration statement or prospectus.
(d) I agree that the Units, the Common Stock and Warrants
included in the Units, and the shares of Common Stock underlying the Warrants
may not be sold or otherwise transferred until twelve months after the Closing
("Holding Period"), unless MHM, in its sole discretion, agrees to the sale of
all or part of such securities at an earlier date. If I am a resident of the
State of Pennsylvania, I further agree that the Units subscribed for herein and
the underlying securities of the Units, if any, shall not be sold for a period
of twelve months from the date of purchase, except as permitted by applicable
securities laws of the State of Pennsylvania. The parties hereto agree that MHM
is intended to be a third-party beneficiary of this Subscription Agreement and
that no modification of the "lock-up" provisions contained in this Section 6(b)
may be made without the prior written agreement of MHM.
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(e) The registration rights granted to the Investor inure to
the benefit of all the Investors' successors, heirs, pledgees, assignees,
transferees and purchasers of the Warrants or the Registrable Securities, as the
case may be.
7. Investor Representations and Warranties. I acknowledge, represent
and warrant to, and agree with, the Company and the Placement Agent as follows:
(a) I am aware that my investment involves a high degree of
risk, and I have read and fully understand the PPM, including the section
entitled "Risk Factors," the Company's 1996 Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1996, the Company's Quarterly Report on Form
10-QSB for the quarter ended June 30, 1997, and the Company's Current Reports on
Form 8-K filed on March 21, 1997 and April 7, 1997.
(b) I acknowledge and am aware that there is no assurance as
to the future performance of the Company.
(c) I acknowledge that, notwithstanding the Company's
commitment herein, there can be no assurance that the Company will file any
Registration Statement for the securities I am purchasing, that such
Registration Statement, if filed, will be declared effective or, if declared
effective, that the Company will be able to keep it effective until I sell the
securities registered thereon.
(d) I am purchasing the Units for my own account for
investment and not with a view to or for sale in connection with the
distribution of the Units, nor with any present intention of selling or
otherwise disposing of all or any part of the Units. I understand that there may
not be any market for the Units or Warrants included in the Units. I agree that
(i) the purchase of the Units is a long-term investment, (ii) I may have to bear
the economic risk of investment for an indefinite period of time because neither
the Units, nor the Common Stock, nor the Warrants (and the Common Stock
underlying the Warrants) have been registered under the Securities Act and,
notwithstanding the Company's commitment herein, may not be registered and,
cannot be resold, pledged, assigned, or otherwise disposed of unless they are
subsequently registered under said Securities Act and under applicable
securities laws of certain states or an exemption from such registration is
available. I understand that the Company is under no obligation to register the
Units or Warrants and, except as set forth herein, the Company is under no
obligation to register the Common Stock underlying the Units or the Common Stock
underlying the Warrants on my behalf or to assist me in complying with any
exemption from such registration under the Securities Act or any state
securities laws. I hereby acknowledge and agree that I will not sell, transfer,
give, or otherwise dispose of, either publicly or privately, the Units or any
securities underlying the Units during the Holding Period without the prior
written agreement of MHM. I hereby authorize the Company to place a legend
denoting the restrictions on the Common Stock and the Warrants to be issued.
(e) I recognize that the Units, as an investment, involve a
high degree of risk including, but not limited to, the risk of economic losses
from operations of the Company and the total loss of my investment. I believe
that the investment in the Units is suitable for me based upon my investment
objectives and financial needs, and I have adequate means for providing for my
current financial needs and contingencies and have no need for liquidity with
respect to my investment in the Company.
(f) I have been given access to full and complete information
regarding the Company and have utilized such access to my satisfaction for the
purpose of obtaining information
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in addition to, or verifying information included in, the PPM and exhibits
thereto, and I have either met with or been given reasonable opportunity to meet
with officers of the Company for the purpose of asking questions of, and
receiving answers from, such officers concerning the terms and conditions of the
offering of the Units and the business and operations of the Company and to
obtain any additional information, to the extent reasonably available.
(g) I have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Units and have obtained, in my judgment, sufficient
information from the Company to evaluate the merits and risks of an investment
in the Company. I have not utilized any person as my purchaser representative as
defined in Regulation D promulgated by the Securities and Exchange Commission
pursuant to the Securities Act in connection with evaluating such merits and
risks.
(h) I have relied solely upon my own investigation in making a
decision to invest in the Company.
(i) I have received no representation or warranty from the
Company or the Placement Agent or any of their respective officers, directors,
employees or agents in respect of my investment in the Company and I have
received no information (written or otherwise) from them relating to the Company
or its business other than as set forth in the PPM. I am not participating in
the offer as a result of or subsequent to: (i) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television, radio or the Internet or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising.
(j) I have had full opportunity to ask questions and to
receive satisfactory answers concerning the offering and other matters
pertaining to my investment and all such questions have been answered to my full
satisfaction. In addition, as required by Section 517.061(11)(a)(3), Florida
Statutes and by Rule 3-500.05(a) thereunder, if I am a Florida resident I may
have, at the offices of the Company, at any reasonable hour, after reasonable
notice, access to the materials set forth in the Rule which the Company can
obtain without unreasonable effort or expense.
(k) I have been provided an opportunity to obtain any
additional information concerning the offering and the Company and all other
information to the extent the Company possesses such information or can acquire
it without unreasonable effort or expense.
(l) I am an "accredited investor" as defined in Section 2(15)
of the Act and in Rule 501 promulgated thereunder.
(m) I understand that (i) the Units and the underlying
securities have not been registered under the Securities Act, or the securities
laws of certain states in reliance on specific exemptions from registration,
(ii) no securities administrator of any state or the federal government has
recommended or endorsed this offering or made any finding or determination
relating to the fairness of an investment in the Company, and (iii) the Company
is relying on my representations and agreements for the purpose of determining
whether this transaction meets the requirements of the exemptions afforded by
the Securities Act and certain state securities laws.
(n) I have been urged to seek independent advice from my
professional advisors relating to the suitability of an investment in the
Company in view of my overall financial needs and with respect to the legal and
tax implications of such investment.
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(o) If the Investor is a corporation, company, trust, employee
benefit plan, individual retirement account, ▇▇▇▇▇ Plan, or other tax-exempt
entity, it is authorized and qualified to become an Investor in the Company and
the person signing this Subscription Agreement on behalf of such entity has been
duly authorized by such entity to do so.
(p) I hereby acknowledge and am aware that except for any
rescission rights that may be provided under applicable laws, I am not entitled
to cancel, terminate or revoke this subscription, and any agreements made in
connection herewith shall survive my death or disability.
8. Indemnification. I hereby agree to indemnify and hold harmless the
Company and MHM, as Placement Agent, their respective officers, directors,
shareholders, employees, agents, and attorneys against any and all losses,
claims, demands, liabilities, and expenses (including reasonable legal or other
expenses, including reasonable attorneys' fees and other expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever
incurred by the indemnified party in any action or proceeding between the
indemnitor and indemnitor and indemnified party or between the indemnified party
and any third party or otherwise) incurred by each such person in connection
with defending or investigating any such claims or liabilities, whether or not
resulting in any liability to such person, to which any such indemnified party
may become subject under the Securities Act, under any other statute, at common
law or otherwise, insofar as such losses, claims, demands, liabilities and
expenses (a) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact made by me and contained in this
Subscription Agreement or my Purchaser Questionnaire, or (b) arise out of or are
based upon any breach by me of any representation, warranty, or agreement made
by me contained herein. MHM is a third-party beneficiary of this Section and
this Section may not be modified or amended without the prior written agreement
of MHM.
9. Severability; Remedies. In the event any parts of this Subscription
Agreement are found to be void, the remaining provisions of this Subscription
Agreement shall nevertheless be binding with the same effect as though the void
parts were deleted. The parties hereto shall have the right to seek damages and
other remedies at law or equity for the breach of the respective obligations of
the other under this Subscription Agreement without limitation.
10. Choice of Law and Jurisdiction. This Subscription Agreement will be
deemed to have been made and delivered in New York City and will be governed as
to validity, interpretation, construction, effect and in all other respects by
the internal laws of the State of New York. The Company and the Investor each
hereby (i) agrees that any legal suit, action or proceeding arising out of or
relating to this Subscription Agreement shall be instituted exclusively in New
York State Supreme Court, County of New York, or in the United States District
Court for the Southern District of New York, (ii) waives any objection to the
venue of any such suit, action or proceeding and the right to assert that such
forum is not a convenient forum for such suit, action or proceeding, and (iii)
irrevocably consents to the jurisdiction of the New York State Supreme Court,
County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding and the Company
further agrees to accept and acknowledge service or any and all process which
may be served in any such suit, action or proceeding in New York State Supreme
Court, County of New York or in the United States District Court for the
Southern District of New York and agrees that service of process upon it mailed
by certified mail to its address shall be deemed in every respect effective
service of process upon it in any suit, action or proceeding.
11. Counterparts. This Subscription Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute
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one and the same instrument. The execution of this Subscription Agreement may be
by actual or facsimile signature.
12. Benefit. This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto (and MHM to the extent it is a
third-party beneficiary hereof) and their respective heirs, executors, personal
representatives, successors and assigns. MHM shall be deemed to be a third-party
beneficiary with respect to any sections hereof which so state or which
otherwise indicate that MHM would be entitled to rely on the representations,
warranties or covenants made by me therein.
13. Notices and Addresses. All notices, offers, acceptance and any
other acts under this Subscription Agreement (except payment) shall be in
writing, and shall be sufficiently given if delivered to the addressees in
person, by Federal Express or similar courier delivery by facsimile delivery or,
if mailed, postage prepaid, by certified mail, return receipt requested, as
follows:
Investor: At the address designated on the signature page of
this Subscription Agreement.
The Company: Globalink, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
In either case,
with a copy to: ▇▇▇▇▇▇▇▇ Mollen & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any of them, by notice to the others may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile deliver.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
14. Oral Evidence. This Subscription Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior oral and written agreements between the parties hereto with
respect to the subject matter hereof. This Subscription Agreement may not be
changed, waived, discharged, or terminated orally but, rather, only by a
statement in writing signed by the party or parties against which enforcement or
the change, waiver, discharge or termination is sought.
15. Section Headings. Section headings herein have been inserted for
reference only and shall not be deemed to limit or otherwise affect, in any
matter, or be deemed to interpret in whole or in part, any of the terms or
provisions of this Subscription Agreement.
16. Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements contained herein shall survive the
delivery of, and the payment for, the Units.
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17. Acceptance of Subscription. The Company may accept this
Subscription Agreement at any time for all or any portion of the Units
subscribed for by executing a copy hereof as provided and notifying me within a
reasonable time thereafter.
RESIDENTS OF ALL STATES: THE UNITS OFFERED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE UNITS ARE SUBJECT TO
RESTRICTION ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE UNITS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR
HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THE
OFFERING OR THE ACCURACY OR ADEQUACY OF THIS CONFIDENTIAL PPM. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
FOR FLORIDA RESIDENTS: PURSUANT TO THE FLORIDA SECURITIES ACT, WHEN
SALES ARE MADE TO FIVE OR MORE PERSONS IN THE STATE OF FLORIDA, EACH PERSON WHO
ACCEPTS THIS OFFER TO PURCHASE UNITS HAS THE RIGHT TO VOID HIS ACCEPTANCE
WITHOUT INCURRING ANY LIABILITY TO THE SELLER OR ANY OTHER PERSON WITHIN THREE
(3) DAYS AFTER THE DELIVERY OF HIS SUBSCRIPTION AGREEMENT AND THE PAYMENT OF THE
PURCHASE PRICE, IN WHICH CASE ALL FUNDS SHALL BE REFUNDED WITHOUT INTEREST OR
DEDUCTION. TO ACCOMPLISH THIS WITHDRAWAL, IT IS SUFFICIENT TO SEND A LETTER OR
TELEGRAM TO THE SECRETARY AT THE OFFICES OF THE COMPANY INDICATING HIS INTENTION
TO WITHDRAW WITHIN SUCH THREE DAY PERIOD.
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Manner in Which Title is to be Held. (check one)
____ Individual Ownership
____ Community Property
____ Joint Tenant with Right of Survivorship(both parties must sign)
____ Partnership
____ Tenants in common
____ Corporation
____ Trust
____ Other (please indicate)
INDIVIDUAL INVESTORS ENTITY INVESTORS
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Signature (Individual) Name of Entity, if any
By:
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*Signature
Its
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Signature (all record holders should sign) Title
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Name(s) Typed or Printed Name Typed or Printed
Address to Which Correspondence Address to Which Correspondence
Should be Directed Should be Directed
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----------------------------------------- -----------------------------
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City, State and Zip Code City, State and Zip Code
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Social Security Number Tax Identification
* If Units are being subscribed for by any entity, the Certificate of
Signatory on the next page must also be completed.
The foregoing subscription is accepted and the Company hereby agrees to be bound
by its terms.
GLOBALINK, INC.
Dated:_________________ , 1997 By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chief Executive Officer
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CERTIFICATE OF SIGNATORY
(To be completed if Units are being subscribed for by an entity)
I, _________________________________, the _____________________________
(name of signatory) (title)
of _____________________________________("Entity"), a
(name of entity)
__________________________________________ .
(type of entity)
hereby certify that the above entity is duly empowered and authorized to
purchase the Units and that I am duly empowered and authorized by the entity to
execute the Subscription Agreement on its behalf.
IN WITNESS WHEREOF, I have executed this Certificate this ____ day of
_________, 1997.
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(Signature)
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