EXHIBIT 4.7
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SUBSCRIPTION AGREEMENT
Datametrics Corporation
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▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman
Ladies and Gentlemen:
The undersigned ("Subscriber") hereby tenders this Subscription
Agreement ("Agreement") in accordance with and subject to the terms and
conditions set forth herein and in the Confidential Private Placement Memorandum
of even date herewith (the "Memorandum").
1. SUBSCRIPTION.
1.1. The undersigned hereby irrevocably subscribes for and agrees to
purchase the number of shares (the "Shares") of common stock, par value $.01 per
share ("Common Stock"), of Datametrics Corporation, a Delaware corporation (the
"Company"), indicated on the signature page hereto at the purchase price per
share set forth on such signature page. The undersigned encloses herewith a
check or money order payable to the Company (or has made payment by wire
transfer of funds in accordance with instructions from the Company) in the full
amount of the purchase price of the Shares for which the undersigned is
subscribing (the "Payment").
1.2. The undersigned understands that each Payment by check or money
order as provided in Section 1.1 above shall be delivered to the Company and,
thereafter, such Payment will be held for the undersigned's benefit by the
Company, but the undersigned will not earn interest on any funds so held. The
Company may hold an initial closing of the Offering (the "Initial Closing")
after subscriptions for at least 1,000,000 Shares have been accepted by the
Company (the "Minimum Offering"). The Company may hold additional interim
closings after the Initial Closing. Any such interim closings together with the
Initial Closing are each hereinafter referred to as an "Additional Closing" and
shall occur on one or more dates each hereinafter referred to as an "Additional
Closing Date." Upon receipt by the Company of the requisite payment for all
Shares to be purchased by the subscribers whose subscriptions are accepted by
the Company (each, a "Purchaser") at the Additional Closing Dates and subject to
the satisfaction of certain conditions, the Shares so purchased will be issued
in the name of each such Purchaser, and the name of such Purchaser will be
registered on the stock transfer books of the Company as the record owner of
such Shares. The Company will issue to each Purchaser a stock certificate for
the Shares purchased.
1.3. The undersigned hereby agrees to be bound hereby upon execution
and delivery to the Company of the signature page to this Subscription
Agreement. The undersigned understands that the Company will not be bound to
issue any shares of Common Stock to the undersigned, unless and until the
Company accepts, on the Initial Closing Date or an Additional Closing Date, as
the case may be, the undersigned's subscription to purchase shares of Common
Stock (the "Subscription").
1.4. The undersigned agrees that the Company may, in its sole and
absolute discretion, reduce the undersigned's subscription to any number of
shares of Common Stock that in the aggregate does not
exceed the number of Shares of Common Stock hereby applied for without any prior
notice to or further consent by the undersigned. The undersigned hereby
irrevocably constitutes and appoints the Chairman or the President of the
Company acting singly, in each case with full power of substitution, the true
and lawful agent and attorney-in-fact of the undersigned, with full power and
authority in the undersigned's name, place and stead to amend this Subscription
Agreement, including, in each case, the undersigned's signature page thereto, to
effect any of the foregoing provisions of this Section 1.4.
OFFERING MATERIAL.
2.1. The Subscriber represents and warrants that it is in receipt of
and that it has carefully read and understands the following items:
(a) the Memorandum;
(b) Annual Reports to the Securities and Exchange Commission
on Form 10-K of the Company for its fiscal years ended October 26, 1997 and
October 29, 1996. The Form 10-K for the fiscal year ended October 26, 1997 is
hereinafter referred to as the "Form 10-K;"
(c) Quarterly Reports to the Securities and Exchange
Commission on Form 10-Q of the Company for the quarters ended July 26,1998,
April 26,1998, January 25, 1998. The July 26, 1998 Form 10- Q is hereinafter
referred to as the "Form 10-Q";
(d) The Company's Current Reports on Form 8-K filed August 7,
1998 and April 30, 1998.
Collectively, the Form 10-K, the Form 10-Q and the Form 8-Ks are
referred to herein as the "Public Reports."
3. CONDITIONS TO SUBSCRIBER'S OBLIGATIONS.
3.1. The obligation of the Subscriber to close the transactions
contemplated by this Agreement (the "Transaction") is subject to the
satisfaction on or prior to the Initial Closing Date, or any Additional Closing
Date, as applicable, of the following conditions set forth in Sections 3.2 and
3.3 hereof.
3.2. The representations and warranties made by Company herein shall
be true in all material respects on and as of the Initial Closing Date or any
Additional Closing Date, as applicable, with the same effect as if they had been
made on and as of such date.
3.3. All proceedings to be taken in connection with the consummation
of the Transaction or prior to the Initial Closing Date or any Additional
Closing Date, as applicable, have been taken, and all documents incident thereto
shall be reasonably satisfactory in form and substance to the Subscriber and its
counsel, and the Subscriber and its counsel shall have received copies of all
documents and information which it may have reasonably requested in connection
with the Transaction and of all corporate proceedings in connection therewith,
in form and substance reasonably satisfactory to Subscriber and its counsel.
4. REPRESENTATIONS AND WARRANTIES; COVENANTS; SURVIVAL.
4.1. The Company represents and warrants that, at the date of this
Agreement:
(a) The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware, entitled
to own its property of a material nature and to carry on its business of a
material nature as and in places where such property is now owned or operated
and such business is conducted;
(b) Each of the subsidiaries of the Company is a
corporation duly organized and validly existing and in good standing under the
laws of the jurisdiction of their respective place of organization, entitled to
own their respective properties of a material nature and to carry on their
respective businesses of a material nature in places where such properties are
now owned or operated and such businesses are conducted, and, except as
disclosed in the Public Reports, there is no action or proceeding pending or to
the Company's best knowledge threatened, brought by or before any federal or
state agency having jurisdiction over the operations of a material nature of the
Company which threatens in any material respect the continued operation of any
material phase of the Company's business now conducted by it or its
subsidiaries;
(c) The Company has furnished the Subscriber with its
certified consolidated financial statements as of October 26, 1997, contained in
the Form 10-K, and such financial statements, including the notes contained
therein, fairly present the consolidated financial position of the Company at
the date thereof and the results of its consolidated operations for the period
purported to be covered thereby. Such financial statements have been prepared in
conformity with generally accepted accounting principles consistently applied
with prior periods subject to any comments and notes contained therein;
(d) The Company by appropriate and required corporate
action, has duly authorized the execution of this Agreement and the issuance and
delivery of the Common Stock. Such shares of Common Stock are not subject to
preemptive or other rights of any stockholders and, when issued in accordance
with the terms of this Agreement, the shares of Common Stock will be validly
issued, fully paid and nonassessable;
(e) Performance of this Agreement and compliance with the
provisions hereof will not violate any provision of any applicable law or of the
Certificate of Incorporation or By-Laws of the Company, or of any of its
subsidiaries, and will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon, any of the
properties or assets of a material nature of the Company, or of any of its
subsidiaries, pursuant to the terms of any indenture, mortgage, deed of trust or
other agreement of instrument binding upon the Company, or any of its
subsidiaries.
5. TRANSFER.
5.1. Subscriber acknowledges that it is acquiring the Common Stock
for its own account and for the purpose of investment and not with a view to any
distribution or resale thereof within the meaning of the Securities Act of 1933,
as amended (the "Act"), and any applicable state or other securities laws
("State Acts"). The Subscriber further agrees that it will not sell, assign or
transfer any of the Common Stock in violation of the Act or State Acts and
acknowledges that, in taking unregistered securities, it must continue to bear
the economic risk of its investment for an indefinite period of time because of
the fact that such Common Stock has not been registered under the Act or State
Acts and further realizes that such Common Stock cannot be sold unless it is
subsequently registered under the Act and State Acts or an exemption from such
registration is available. The Subscriber further understands that it is
acquiring Common Stock at a price below the price at which such Common Stock is
being traded on the American Stock Exchange at the time of this Agreement, and
therefore, such Common Stock will contain a restriction on transferabiity for a
period of six months from the date of purchase, regardless of any subsequent
registration under the Act. The Subscriber further recognizes that the Company
is not assuming any obligation to register such Common Stock except as set forth
herein. The Subscriber also acknowledges that appropriate legends reflecting the
status of the Common Stock under the Act and State Acts may be placed on the
face of the certificates for such Common Stock at the time of their transfer and
delivery to the holder thereof.
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5.2. The Common Stock issued pursuant to this Agreement may not be
transferred except in a transaction which is in compliance with the Act and
State Acts. Except as provided in Section 6.1, it shall be a condition to any
such transfer that the Issuer shall be furnished with an opinion of counsel to
the holder of such Common Stock, reasonably satisfactory to the Company, to the
effect that the proposed transfer would be in compliance with the Act and State
Acts.
6. PIGGYBACK REGISTRATION RIGHTS.
6.1. The Subscriber shall be entitled to certain "piggyback"
registration rights under the Act with respect to the Shares, upon the terms and
subject to the conditions hereinafter set forth:
(a) If the Company shall determine to register under the Act any of
its Common Stock either for its own account or for the account of its
shareholders, other than a registration relating solely to employee benefit
plans, or a registration relating to a corporate reorganization or other
transaction under Rule 145 promulgated under the Act, or a registration on any
registration form that does not permit secondary sales, the Company will:
(i) promptly give to the Subscriber written notice thereof; and
(ii) except as set forth in Section 6.1 (b), below, use its best
efforts to include in such registration (and any related qualification under
State Acts or other compliance), and in any underwriting involved therein, such
of the Shares being delivered to the Subscriber pursuant to this Agreement as
are specified in a written request made by the Subscriber and received by the
Company within ten (10) days after the written notice from the Company described
in clause (i) above is mailed or delivered by the Company. Such written request
may specify all or a part of the Shares to be so included in such registration.
(b) If the registration of which the Company gives notice is for
a registered public offering involving an underwriting, then the Company shall
so advise the Subscriber as a part of the written notice given pursuant to
Section 6.1(a). In such event, the right of the Subscriber to registration
pursuant to this Section 6.1 shall be conditioned upon participation by the
Subscriber in such underwriting and the inclusion of the Shares in the
underwriting to the extent provided therein. All Subscribers proposing to
distribute their shares of Common Stock through such underwriting shall
(together with the Company and the other holders of securities of the Company
with registration rights to participate therein distributing their shares of
Common Stock through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected by the Company.
Notwithstanding any other provision of this Section 6.1, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitation set forth below) exclude all
Shares from, or limit the number of Shares to be included, in the registration
and underwriting. The Company shall so advise all holders of shares of Common
Stock requesting registration, and the number of shares of shares of Common
Stock that are entitled to be included in the registration and underwriting
shall be allocated first to the Company for shares being issued and sold for its
own account and then to such other holders (including the Subscriber) pro rata
based upon the relative number of shares sought to be included in such
registration by such holders. If any Subscriber does not agree to the terms of
any such underwriting, such Subscriber shall be excluded therefrom by written
notice from the Company or the underwriter. Any Shares excluded or withdrawn
from such underwriting shall be withdrawn from such registration.
(c) Except as provide above, the Company shall not be required
to register any Shares under the Act.
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7. CLOSING.
7.1. The closing of the sale of Common Stock ("Closing") to
Subscriber shall take place at the offices of the Company, on or before December
31, 1998 (the "Closing Date"), at such time as the Company and Subscriber shall
mutually agree. The Company may, in its sole discretion, extend the Closing
Date. Any payments tendered herewith in connection with Subscriptions that have
not been accepted by the Closing Date, as extended, shall promptly be returned
to the Subscriber tendering such payments.
8. SUBSCRIBER REPRESENTATIONS. The undersigned hereby represents and warrants
to and agrees with the Company as follows:
8.1. The undersigned has been furnished with and has carefully read
the Form 10-K, Form 10-Q and Form 8-Ks and is familiar with and understands the
terms of the offering described herein (the "Offering"). With respect to
individual or partnership tax and other economic considerations involved in this
investment, the undersigned is not relying on the Company (or any agent or
representative of the Company). The undersigned has carefully considered and
has, to the extent the undersigned believes such discussion necessary, discussed
with the undersigned's professional legal, tax, accounting and financial
advisers, the suitability of an investment in the Common Stock for the
undersigned's particular tax and financial situation and has determined that the
Common Stock being subscribed for by the undersigned is a suitable investment
for the undersigned.
8.2. The undersigned acknowledges that all documents, records and
books pertaining to this investment which the undersigned has requested have
been made available for inspection by the undersigned and the undersigned's
attorney, accountant and other adviser(s).
8.3. The undersigned and/or the undersigned's advisor(s) has/have
had a reasonable opportunity to ask questions of and receive answers from a
person or persons acting on behalf of the Company concerning the Offering and
all such questions have been answered to the full satisfaction of the
undersigned.
8.4. The undersigned is not aware of any material information
regarding the Company, any of its subsidiaries, or their respective business,
prospects, financial condition or results of operations which has not been
disseminated generally to the public.
8.5. The undersigned is not subscribing for shares of Common Stock
as a result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or meeting.
8.6. The undersigned is an "accredited investor," within the meaning
of Rule 501(a) of Regulation D under the Act. The undersigned, by reason of the
undersigned's business or financial experience or the business or financial
experience of the undersigned's professional advisers who are unaffiliated with
and who are not being compensated by the Company or any affiliate of the
Company, directly or indirectly, can be reasonably assumed to have the capacity
to protect its interests in connection with an investment in the shares of
Common Stock.
8.7. If the undersigned is a natural person, the undersigned has
adequate means of providing for the undersigned's current financial needs and
contingencies, is able to bear the substantial economic risks of an investment
in the shares of Common Stock for an indefinite period of time, has no need for
liquidity in such investment and, at the present time, could afford a complete
loss of such investment.
8.8. The undersigned or the undersigned's purchaser representative,
as the case may be, has such knowledge and experience in financial, tax and
business matters so as to enable the undersigned to utilize the information made
available to the undersigned in connection with the Offering to evaluate the
merits and risks of an investment in the Common Stock and to make an informed
investment decision with respect
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thereto.
8.9. The undersigned acknowledges the Shares of Common Stock herein
submitted for have not been registered under the Act or under any State Acts.
The undersigned will not sell, transfer or otherwise dispose of the Shares
unless they are registered under the Act and any applicable State Acts or
pursuant to available exemptions from such registration; provided that the
undersigned shall be required to deliver to the Company an opinion of counsel
satisfactory to the Company confirming the availability of such exemption. The
undersigned represents that the undersigned is purchasing the Common Stock for
the undersigned's own account, for investment and not with a view to resale or
distribution except in compliance with the Act and the restrictions contained in
the immediately preceding sentence. The undersigned has not offered or sold any
portion of the Shares of Common Stock being acquired nor does the undersigned
have any present intention of selling, distributing or otherwise disposing of
the shares of Common Stock either currently or after the passage of a fixed or
determinable period of time or upon the occurrence or nonoccurrence of any
predetermined event or circumstance in violation of the Act or any State Acts.
8.10. The undersigned recognizes that investment in the Shares
involves substantial risks, including loss of the entire amount of such
investment. Further, the undersigned has carefully read and considered the
matters set forth in the Memorandum, and has taken full cognizance of and
understands all of the risks related to a purchase of the Shares.
8.11. The undersigned acknowledges that each certificate representing
the Shares shall be stamped or otherwise imprinted with a legend substantially
in the following form:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE
EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
The undersigned acknowledges and agrees that it shall not be entitled
to seek any remedies with respect to the Offering from any party other than the
Company.
8.13. If this Subscription Agreement is executed and delivered on
behalf of a partnership, corporation, trust or estate: (i) such partnership,
corporation, trust or estate has the full legal right and power and all
authority and approval required (a) to execute and deliver, or authorize
execution and delivery of, this Subscription Agreement and all other instruments
executed and delivered by or on behalf of such partnership, corporation, trust
or estate in connection with the purchase of the Shares, (b) to delegate
authority pursuant to a power of attorney and (c) to purchase and hold such
Shares; (ii) the signature of the party signing on behalf of such partnership,
corporation, trust or estate is binding upon such partnership, corporation,
trust or estate; and (iii) such partnership, corporation or trust has not been
formed for the specific purpose of acquiring the Shares, unless each beneficial
owner of such entity is qualified as an "accredited investor" within the meaning
of Rule 501(a) of Regulation D under the Act and has submitted information
substantiating such individual qualification.
8.14. If the undersigned is a retirement plan or is investing on
behalf of a retirement plan, the undersigned acknowledges that investment in the
Shares poses risks in addition to those associated with other investments,
including the inability to use losses generated by an investment
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in the Shares to offset taxable income.
8.15. The undersigned shall indemnify and hold harmless the Company
and each of its subsidiaries and each officer, director or control person of any
such entity, who is or may be a party or is or may be threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of or
arising from any actual or alleged misrepresentations or misstatement of facts
or omission to represent or state facts made or alleged to have been made by the
undersigned to the Company (or any agent or representative of the Company) or
omitted or alleged to have been omitted by the undersigned, concerning the
undersigned or the undersigned's authority to invest or financial position in
connection with the Offering, including, without limitation, any such
misrepresentation, misstatement or omission contained in any document submitted
by the undersigned in connection with the Offering, against losses, liabilities
and expenses actually and reasonably incurred by the Company or any officer,
director or control person of the Company in connection with such action, suit
or proceeding for which the Company or such officer, director or control person
has not otherwise been reimbursed (including attorneys' fees, judgments, fines
and amounts paid in settlement).
9. UNDERSTANDINGS
The undersigned understands, acknowledges and agrees with the Company
as follows:
9.1. This Subscription may be rejected, in whole or in part, by the
Company, in its sole and absolute discretion, at any time before an Initial
Closing Date or any Additional Closing Date, as the case may be, notwithstanding
prior receipt by the undersigned of notice of acceptance of the undersigned's
Subscription.
9.2. Except as set forth in paragraph 8.1 above, the undersigned
hereby acknowledges and agrees that the Subscription hereunder is irrevocable by
the undersigned, that, except as required by law, the undersigned is not
entitled to cancel, terminate or revoke this Subscription Agreement or any
agreements of the undersigned hereunder and that this Subscription Agreement and
such other agreements shall survive the death or disability of the undersigned
and shall be binding upon and inure to the benefit of the parties and their
heirs, executors, administrators, successors, legal representatives and
permitted assigns. If the undersigned is more than one person, the obligations
of the undersigned hereunder shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and his/her heirs, executors,
administrators, successors, legal representatives and permitted assigns.
9.3. No Federal or state agency has made any findings or
determination as to the accuracy or adequacy of the Memorandum or as to the
fairness of the terms of this Offering for investment nor any recommendations or
endorsement of the Shares of Common Stock.
9.4. The Offering is intended to be exempt from registration under
the Securities Act by virtue of Section 4(2) of the Act and the provisions of
Regulation D thereunder, which is in part dependent upon the truth, completeness
and accuracy of the statements made by the undersigned herein.
9.5. There can be no assurance that the undersigned will be able to
sell or dispose of all or a portion of the Shares. It is understood that in
order not to jeopardize the Offering's exempt status under Section 4(2) of the
Securities Act and Regulation D, any transferee may, at a minimum, be required
to fulfill the investor suitability requirements thereunder.
9.6. The representations, warranties and agreements of the
undersigned contained herein
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and in any other writing delivered in connection with the transactions
contemplated hereby shall be true and correct in all respects on and as of the
date of the sale of the Shares as if made on and as of such date and shall
survive the execution and delivery of this Subscription Agreement and the
purchase of the Shares.
9.7. IN MAKING AN INVESTMENT DECISION, PURCHASERS MUST RELY ON THEIR
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THE SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL
OR STATE SECURITIES COMMISSION ON REGULATORY AUTHORITY. FURTHERMORE, THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY
OF THE MEMORANDUM OR THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
9.8. The Offering and sale of the Shares is intended to be exempt
from registration under the securities laws of certain U.S. states. A purchaser
residing in one or more of the following states shall note the language set
forth below, which is required to be included in this Agreement by the
securities laws of those states. The Purchaser must note that there are
restrictions on transfer of all Shares.
ALL STATES: THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
LAWS. THE SECURITIES 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 THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE MEMORANDUM. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT,
AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
FOR NEW YORK RESIDENTS ONLY:
THE MEMORANDUM HAS NOT BEEN FILED WITH OR REVIEWED BY THE ATTORNEY GENERAL OF
THE STATE OF NEW YORK PRIOR TO ITS ISSUANCE AND USE. THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
THE MEMORANDUM DOES NOT CONTAIN AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT
TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS MADE, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY ARE MADE, NOT MISLEADING. IT CONTAINS A FAIR
SUMMARY OF THE MATERIAL TERMS OF DOCUMENTS PURPORTED TO BE SUMMARIZED HEREIN.
MISCELLANEOUS.
10.1. Except as set forth elsewhere herein, any notice or demand to
be given or served
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in connection herewith shall be deemed to be sufficiently given or served for
all purposes by being sent as registered or certified mail, return receipt
requested, postage prepaid, in the case of the Company, addressed to it at the
address set forth above; and in the case of Subscriber to the address for
correspondence set forth in the Company's books and records.
10.2. This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of
California, as such laws are applied by California courts to agreements entered
into and to be performed in California by and between residents of California,
and shall be binding upon the undersigned, the undersigned's heirs, estate,
legal representatives, successors and assigns and shall inure to the benefit of
the Company, the Placement Agents, and their respective successors and assigns.
If any provision of this Subscription Agreement is invalid or unenforceable
under any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed to
be modified to conform with such statute or rule of law. Any provision hereof
that may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof.
10.3. This Agreement shall be binding upon and inure to the benefit
of the Company, and Subscriber and their respective successors and assigns.
10.4. In any action, proceeding or counterclaim brought to enforce
any of the provisions without of this Agreement or to recover damages, costs and
expenses in connection with any breach of the Agreement, the prevailing party
shall be entitled to be reimbursed by the opposing party for all of the
prevailing party's attorneys' fees, costs and other out-of-pocket expenses
incurred in connection with such action, proceeding or counterclaim.
11. SIGNATURE. The signature of this Subscription Agreement is contained as
part of the applicable Subscription Package, entitled "Signature Page."
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SUBSCRIPTION AGREEMENT GENERAL INSTRUCTIONS
GENERAL INSTRUCTIONS
These Subscription Documents contain all documents necessary to
subscribe for Shares ("Shares") of Common Stock, par value $.01 per Share
("Common Stock") of Datametrics Corporation, a Delaware corporation (the
"Company").
You may subscribe for Shares by completing the Subscription Agreement
in the following manner:
1. On line(a) state the number of Shares you wish to purchase.
2. On line (b) state the total cost of the Shares you wish to
purchase. To obtain the cost, multiply the number of Shares you desire to
purchase by the purchase price per Share set forth.
3. Please complete the detailed investment and other
representations in the Subscription Agreement to evidence your suitability for
an investment in the Company. All Purchasers must complete and sign the
Subscription Agreement.
4. Sign and state your address, telephone number and social
security or other taxpayer identification number on the lines provided on the
signature page to the Subscription Agreement, have your signature acknowledged
by a notary public and deliver the completed Subscription Agreement to the
Company with payment of the entire purchase price of the Shares subscribed for.
Payment should be made in United States Dollars, in cash or by check, bank draft
or postal or express money order payable to "Datametrics Corporation" or by wire
transfer to an account to be designated by the Company. The Subscription
Agreement Signature Page must be completed and signed by each investor and all
signatures must be acknowledged by a notary public. Send all documents and
payments to :
Datametrics Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, No. 3305
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman of the Board
THE COMPLETED SUBSCRIPTION AGREEMENT SHOULD BE RETURNED IN ITS ENTIRETY
TO THE PLACEMENT AGENT DESIGNATED ABOVE.
ACCEPTANCE OF DELIVERY
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of the completed Subscription Agreement will be
determined by the Company, which determination will be final and binding. The
Company reserves the absolute right to reject any completed Subscription
Agreement, in its sole and absolute discretion. The Company also reserves the
right to waive any irregularities in, or conditions of, the submission of
completed Subscription Agreements, and the Company's interpretation of the terms
and conditions for the purchase of Shares (including these instructions) shall
be final and binding. The Company shall be under no duty to give any
notification of irregularities in connection with any attempted subscription for
Shares or incur any liability for failure to give such notification. Until such
irregularities have been cured
or waived, no subscription for Shares shall be deemed to have been made. Any
Subscription Agreement that is not properly completed and as to which defects
have not been cured or waived will be returned by the Company to the subscriber
as soon as practicable. Unless an aggregate of 1,559,374 Shares are subscribed
for and purchased, no Shares will be sold and all subscriptions for Shares will
be returned, without interest or deduction.
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
PLEASE PRINT OR TYPE, USE INK ONLY.
(ALL PARTIES MUST SIGN)
The undersigned investor hereby certifies that he (i) has received and
relied solely upon the Offering Documents, (ii) agrees to all the terms and
conditions of this Subscription Agreement (iii) meets the suitability standards
set forth in this Subscription Agreement and (iv) is a resident of the state or
foreign jurisdiction indicated below.
(A) THE UNDERSIGNED IRREVOCABLY SUBSCRIBES FOR_________________SHARES OF COMMON STOCK.
(B) THE TOTAL COST OF THE SHARES SUBSCRIBED FOR, AT $1.00 PER SHARE, IS $____________.
If other than individual check one and indicate
Name of Subscriber (Print) capacity of signatory under the signature:
Trust
Estate
Name of Joint Subscriber (if any) (Print) Uniform Gifts to Minors Act of State of ___
Attorney-in-fact
Corporation
Signature of Subscriber Other
If Joint Ownership, check one:
Signature of Joint Subscriber (if any)
Joint Tenants with Right of Survivorship
Tenants in Common
Capacity of Signatory (if applicable) Tenants by the Entirety
Community by Property
Social Security or Taxpayer identification Backup Withholding Statement:
Number Please check this box only if the investor is
subject to backup withholding
Residence Address Foreign Person:
Please check this box only if the investor is a
nonresident alien, foreign corporation,
City State Zip Code foreign partnership, foreign trust or foreign
estate.
Telephone ( )
The investor agrees to the terms of this Subscription Agreement and, as required
by the Regulations pursuant to the Internal Revenue Code, certifies under
penalty of perjury that (1) the Social Security Number or Taxpayer
Identification Number and address provided above is correct, (2) the investor is
not subject to backup withholding (unless the Backup Withholding Statement box
is checked) either because he has not been notified that he is subject to backup
withholding as a result of a failure to report all interest or dividends or
because the Internal Revenue Service has notified him that he is no longer
subject to backup withholding and (3) the investor (unless the Foreign Person
box above is checked) is not a nonresident alien, foreign partnership, foreign
trust or foreign estate.
THE SUBSCRIPTION FOR_____SHARES OF DATAMETRICS CORPORATION BY THE ABOVE
NAMED SUBSCRIBER(S) IS ACCEPTED THIS_____DAY OF DECEMBER, 1998.
DATAMETRICS CORPORATION
By:
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