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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 6, 1998
ChemTrak Incorporated
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-19749 77-0295388
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation organization) File Number) Identification No.)
929 E. Arques Avenue, Sunnyvale, California 94086-4520
-------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 773-8156
------------------
N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
------------
ChemTrak Incorporated (the "Company") has raised approximately $1 million
from the private placement of shares of redeemable convertible Series B
Preferred Stock pursuant to Subscription Agreements and Questionnaires dated as
of April 6, 1998; April 8, 1998; April 28, 1998; and April 29, 1998,
respectively.
The shares of Series B Preferred Stock are convertible into shares of
Common Stock of the Company 90 days after issuance. The shares of Series B
Preferred Stock bear cumulative dividends at an annual rate of 6 percent payable
in shares of Common Stock of the Company or cash at the Company's option. The
shares of Series B Preferred Stock, after adjustment to account for any accrued
dividend that has not been paid in cash, is convertible at a conversion price
equal to the lower of (1) 100 percent of the five-day Nasdaq average closing-bid
price on the date of each individual closing or (2) 75 percent of the five-day
average Nasdaq closing-bid price at time of conversion.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
---------------------------------
(c) Exhibits
4.1 Form of Subscription Agreements and Questionnaires dated as of
April 6, 1998; April 8, 1998; April 28, 1998; and April 29, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CHEMTRAK INCORPORATED
Dated: May 27, 1998 By: /s/ DONALD V. FLUKEN
----------------------------------
Donald V. Fluken
Vice President, Secretary and
Chief Financial Officer
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INDEX TO EXHIBITS
Exhibit No.
----------
4.1 Form of Subscription Agreements and Questionnaires dated as of
April 6, 1998; April 8, 1998; April 28, 1998; and April 29, 1998.
<PAGE>
EXHIBIT 4.1
FORM OF
PRIVATE PLACEMENT OFFERING
SUBSCRIPTION AGREEMENT AND QUESTIONNAIRE
----------------------------------------
THE SECURITIES, INCLUDING THE UNDERLYING SECURITIES, THAT ARE THE
SUBJECT OF THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1993, AS AMENDED (THE "ACT"), OR UNDER THE LAWS OF ANY
STATE OR OTHER JURISDICTION. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS THE SALE IS OTHERWISE
EXEMPT FROM REGISTRATION. THE COMPANY MAY REQUEST A WRITTEN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED IN CONNECTION WITH SUCH SALE, PLEDGE OR HYPOTHECATION, OR OTHER
TRANSFER.
AGREEMENT, effective this ____ day of March, 1998, between CHEMTRAK
INCORPORATED, a corporation incorporated under the laws of the State of Delaware
(the "Company"), and
(the "Subscriber").
--------------------
R E C I T A L S
---------------
A. The Company desires to provide financing for itself by selling, to
accredited investors, shares (the "Shares") of the Company's 6% Convertible
Preferred B Stock at $1,000.00 per share (the "Preferred Stock"), for an
aggregate purchase price of not more than $1,000,000.00 in the first tranche and
$2,000,000.00 in the second tranche.
B. Purchase of the Shares involves significant investment risks. The
Shares are being offered only to accredited investors as such term is defined
under Regulation D of the Securities and Exchange Commission ("SEC").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Purchase of Shares.
------------------
The Company agrees to sell to the Subscriber, and the Subscriber
agrees to purchase from the Company, Shares for the aggregate purchase price set
forth in the signature page hereof.
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2. Payment of Purchase Price.
-------------------------
Concurrently with the delivery of this Agreement, the Subscriber has
delivered a check or made a wire transfer in the amount set forth in the
signature page hereof in payment of the purchase price for the Shares. Checks
shall be made payable, or wired funds shall be sent, Chase Manhattan Bank, New
York, AC#910-2-758829, Escrow Incoming Wire Account, Further Credit: Chem Trak
Incorporated, Attn: Connie Hum.
3. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to the Subscriber as follows:
(a) The Shares will be, when issued, delivered and paid for in
accordance with this Agreement, duly and validly issued, fully paid and non-
assessable; all presently outstanding shares of Common Stock of the Company have
been duly authorized, validly issued and are fully paid and non-assessable; the
Shares are not being issued in violation of the preemptive rights of any of the
Company's security holders, and all corporate action required to be taken by the
Company prior to the issuance and sale of the Shares to qualified subscribers
has been or, prior to the sale thereof, will have been taken.
(b) The authorized capital stock of the Company consists of 40,000,000
shares of Common Stock, par value $0.001 per share, of which approximately
14,880,000 shares of such Common Stock are issued and outstanding, 5,000,000
shares of Preferred Stock, par value $0.001 per share, of which approximately
910 shares of such Preferred Stock are issued and outstanding as Series A
Preferred.
(c) The Company is duly incorporated, validly existing and in good
standing as a corporation under the laws of the State of Delaware.
(d) The Company is duly qualified to do business and is in good
standing in each jurisdiction in which its activities or its ownership or
leasing of property requires such qualification.
(e) This Agreement has been duly and validly authorized and executed
and delivered by and on behalf of the Company and constitutes a valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, subject to any applicable bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors' rights generally.
(f) No consent, approval authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the Company,
or any of its affiliates is required for execution of this Agreement, including,
without limitation, issuance and sale of the Preferred Stock and the issuance of
the Shares upon any conversion of the Preferred Stock or the performance of
obligations hereunder, except for the filing of a Certificate of Designation
with the Secretary of
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State of Delaware and a notice to be filed with the California Department of
Corporations upon completion of the transaction contemplated hereby.
(g) There are no actions, investigations, statutes, rules or
regulations or other proceedings of any nature in effect or pending or to the
Company's knowledge threatened, as the case may be, which, either in any case or
in the aggregate, if decided adversely, might result in any material adverse
change, financial or otherwise, in the assets, properties, condition, business,
earnings or prospects of the Company or which question the validity of the
capital stock of the Company, this Agreement or any action taken or to be taken
by the Company pursuant to or in connection with this Agreement.
(h) The Company's most recent Form 10-K and subsequent forms 10-Q and
8-K as filed with the U.S. Securities and Exchange Commission (the "Commission")
(collectively, with exhibits thereto, hereinafter referred to as the "Reports")
present fairly the financial position of the Company as of the respective dates
thereof and the results of operations and cash flows for the respective periods
covered thereby and are in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period involved.
Since December 31, 1997, there has been no material adverse change, financial or
otherwise, in the assets, properties, condition, business, earnings or prospects
of the Company.
(i) The Company has filed each tax return which is required to be
filed, or has requested an extension therefor and has paid or otherwise provided
for all taxes shown on such return and all related assessments to the extent
that the same have become due.
(j) All information from the Company which is included in this
Subscription Agreement is accurate and complete and does not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
4. Representation and Warranties of the Subscriber.
-----------------------------------------------
The Subscriber hereby represents, warrants and acknowledges to the
Company as follows:
(a) Each of the Subscriber and its advisors, if any, has been
furnished with and has read the Company's most recent Form 10-K and subsequent
forms 10-Q and 8-K as filed with the Commission. In addition, each of the
Subscriber and its advisors has received from the Company such other information
concerning its operations, financial condition and other matters as the
Subscriber has requested, and considered all factors each of the Subscriber and
its advisors deems material in deciding on the advisability of investing in the
Securities (such information in writing is, collectively, the "Other Written
Information"). Each of the Subscriber and its advisors, if any, has been
afforded the opportunity to ask questions of the Company and have received
satisfactory answers to any such inquiries. Neither such inquiries nor any
other due diligence investigation conducted by the Subscriber and its advisors
shall modify, amend or affect the Subscriber's right to
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rely on the Company's representations and warranties contained in Section 3
above. The Subscriber acknowledges that, in making the decision to purchase the
Shares, it has relied solely upon independent investigations made by it and not
upon any representations made by the Company with respect to the Company or the
Shares, other than those representations set forth in Section 3 hereof.
(b) This Agreement has been executed and delivered by the Subscriber
and is a valid and binding agreement enforceable against the Subscriber in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally; and the Subscriber has
full power and authority necessary to enter into this Agreement and to perform
its obligations hereunder.
(c) No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Subscriber is required for execution of this Agreement including, without
limitation, the purchase of the Shares, or the performance of the Subscriber's
obligations hereunder.
(d) The Subscriber understands that no United States or other
governmental agency has passed on or made any recommendation or endorsement of
the Shares.
(e) The Subscriber understands that the Shares are being offered and
sold in reliance upon 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 Subscriber's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Subscriber set forth herein in order to determine the availability of such
exemptions and the eligibility of the Subscriber to acquire the Shares.
(f) The Subscriber is acquiring the Shares pursuant to this Agreement
for investment for its own account and not with a view to the distribution (as
such term is used in Section 2(11) of the Securities Act of 1933, as amended
(the "Securities Act") thereof.
(g) The Subscriber realizes that the Shares are speculative, illiquid
and involve a high degree of risk, including the risks of receiving no return on
the investment and of losing the investment in the Company.
(h) The Subscriber has sufficient financial resources to hold the
Shares for an indefinite period of time and is able to bear the economic risk of
investment in the Shares, including the total loss of such investment.
(i) The Subscriber believes that subscribing for the Shares pursuant
to the terms of this Agreement is an appropriate and suitable investment for the
Subscriber.
(j) The Subscriber is experienced and knowledgeable in financial and
business matters, and is capable of evaluating the merits and risks of
purchasing securities of the Company.
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(k) The Subscriber is a resident of the State of ________________.
(l) The Subscriber is an "accredited investor" as defined in Rule 501
of Regulation D under the Securities Act and (check all that apply):
--------- (i) A natural person whose individual net worth
(assets less abilities), or joint net worth with his or her spouse, exceeds
$1,000,000.
--------- (ii) A natural person whose individual income was in
excess of $200,000, or whose joint income with his or her spouse was in
excess of $300,000, each of the two most recent years, and who has a
reasonable expectation of reaching the same income level for the current
year.
--------- (iii) A bank, insurance company, registered investment
company, business development company, small business investment company or
employee benefit plan.
--------- (iv) A savings and loan association, credit union, or
similar financial institution or a registered broker or dealer.
--------- (v) A private business development company.
--------- (vi) An organization described in Section 501(c)(3) of
the Internal Revenue Code with assets in excess of $5,000,000.
--------- (vii) A corporation, Massachusetts or similar business
trust, or partnership with assets in excess of $5,000,000.
--------- (viii) A trust with assets in excess of $5,000,000.
--------- (ix) A director or an executive officer of the
Company.
--------- (x) An entity in which all of the equity owners are
accredited investors.
--------- (xi) A self-directed IRA, Keogh, or similar plan of
which the individual directing the investments qualifies as an "accredited
investor" under one or more of items (i)-(x), above. Also check the
item(s) [(i)-(x)] that applies.
The Company reserves the right to request additional information from
the Subscriber to verify the information represented by the Subscriber herein.
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5. Investment Purpose in Acquiring the Shares.
------------------------------------------
The Subscriber and the Company acknowledge that the securities
comprising the Shares have not been registered under the Securities Act, or
applicable state securities laws, and that such securities will be issued to
Subscriber in reliance on exemptions from the registration requirements of the
Securities Act and applicable state securities laws, based in part on
Subscriber's representations and undertakings contained herein, including
Subscriber's investment intent. The Subscriber has no present intention to
divide his participation with others or to resell or otherwise dispose of all or
any part of the Shares.
6. Compliance with Securities Act.
------------------------------
The Subscriber agrees that if the Shares or any part thereof are to be
sold or transferred by the Subscriber in the future, the Subscriber will sell or
distribute them pursuant to the requirements of the Securities Act and
applicable state securities laws. The Subscriber agrees that the Subscriber
will not transfer any part of the Shares without (i) obtaining an opinion of
counsel satisfactory in form and substance to the counsel for the Company to the
effect that such transfer is exempt from the registration requirements under the
Securities Act and applicable state securities laws or (ii) under the required
registration.
7. Restrictive Legend.
------------------
Subscriber agrees that the Company may place a restrictive legend on
the documents representing the securities comprising the Shares containing
substantially the following language:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS THE SALE IS
OTHERWISE EXEMPT FROM REGISTRATION. THE COMPANY MAY REQUEST A WRITTEN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH SALE, PLEDGE OR
HYPOTHECATION, OR OTHER TRANSFER. THIS CERTIFICATE MUST BE SURRENDERED TO
THE CORPORATION OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE,
PLEDGE, HYPOTHECATION OR ANY OTHER TRANSFER OF ANY INTEREST IN ANY OF THE
SHARES REPRESENTED BY THIS CERTIFICATE.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER CONTAINED IN AN AGREEMENT
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BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF THE COMPANY.
8. Stop Transfer Order.
-------------------
The Subscriber agrees that the Company may place a stop transfer order
with its registrar and stock transfer agent (if any) covering all certificates
representing the securities comprising the Shares, provided that, the Company
will not placed a stop transfer order (i) after one year from closing or (ii)
after a registration statement pursuant to Section 10(c) is effective.
9. Knowledge of Restrictions Upon Transfer of the Shares.
-----------------------------------------------------
The Subscriber understands that the securities comprising the Shares
are not freely transferable and may in fact be prohibited from sale for an
extended period of time and that, as of consequence thereof, the undersigned
must bear the economic risk of investment in the Shares for an indefinite period
of time and may have extremely limited opportunities to dispose of the Shares.
10. Registration and Other Rights with regard to the Shares.
-------------------------------------------------------
(a) The shares offered herein shall be Series B 6% Cumulative
Convertible Preferred Stock (the "Series B Preferred Stock") convertible into
common stock of the Company (the "Common Stock") The dividend shall be 6% per
annum, payable in Common Stock or cash, at the Company's option, at the time of
conversion.
(b) The Holder may convert the Series B Preferred Stock purchased
hereunder into Common Stock at 75% of the average five day closing bid price of
such Common Stock prior to conversion notice, but at no time higher than 100% of
the fixed strike price per share. "Fixed strike price" shall mean the Bid Price
of the Common Stock at the time of closing. "Bid Price" shall mean the average
of prior 5 days NASDAQ closing bid price of the Common Stock.
(c) The Company shall prepare and file with the Commission as promptly
as reasonably practicable a registration statement on Form S-3 or any other Form
available to the Company to register up to 10,000,000 shares of the Common Stock
reserved for issue upon conversion of the Series B Preferred Stock by Holders.
Each of the Company and Subscriber shall use commercially reasonable efforts to
respond to any comments of the Commission, and to have the S-3 declared
effective under the Securities Act as promptly as practicable after such filing.
If a registration statement registering the Common Stock is not effective within
120 days of closing due to the failure of the Company to exercise commercially
reasonable efforts to obtain an effective registration statement, the Company
shall pay to Holders as liquidated damages a fee of 3% per month of the
principal amount converted by such Holder, in cash or additional shares for each
month or portion thereof, calculated from the 121st calendar day after closing,
until the registration statement is effective, for a maximum of eight months.
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(d) Holders of the Series B Preferred Stock offered herein may convert
their stock the earlier of either 90 days from the closing or the effective date
of the effective registration statement.
(e) The Company may elect to redeem all of part of the Series B
Preferred Stock upon payment of $1,250 per share (the "Redemption Price") to the
Holders. The date notice of redemption is given to the Holder is the Redemption
Date. The Company shall effect a Redemption by written notice to the Holder.
The Redemption Price must be paid by the Company to the Holder not sooner than
five business days, but not later than ten business days after such notice is
sent. The Company may not redeem any amount that the Holder has elected to
convert, including a notice of conversion given after the Redemption Date but
prior to receipt by the Holder of the Redemption Price. In the event the
Company gives written notice to affect a redemption, but fails to timely pay the
Redemption Price, then the Holder may elect to avoid the Redemption Notice.
After such failure, the Company will no longer have the right to affect any
Redemption.
If an offering in connection with which the Subscriber is entitled to
registration under this paragraph (a) is an underwritten offering, then the
Subscriber shall, unless otherwise agreed by the Company, offer and sell the
Shares included in such Registration Statement in an underwritten offering using
the same underwriter or underwriters and, subject to the provisions of this
Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering.
(f) In connection with the filing of a registration statement pursuant
to this section, the Company shall:
(i) notify the Subscriber as to the filing and status thereof and of
all amendments thereto filed prior to the effective date of said
registration statement;
(ii) notify such Subscriber promptly after it shall have received
notice of the time when the registration statement becomes
effective or any supplement to any prospectus forming a part of
the registration statement has been filed;
(iii) prepare and file without expense to such Subscriber any
necessary amendment or supplement to such registration statement
or prospectus as may be necessary to comply with the 1933 Act or
advisable in connection with the proposed distribution of the
securities by such Subscriber;
(iv) take all reasonable steps to qualify the Shares for sale under
the securities or blue sky laws of such reasonable number of
states as such Subscriber may designate in writing and to
register or obtain the approval of any federal or state
authority which may be required in connection with the proposed
distribution, except, in each case, in jurisdictions in which
the Company must either qualify to do business or file a general
consent to service of process as a condition of the
qualification of such securities;
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(v) notify such Subscriber of any stop order suspending the
effectiveness of the registration statement and use its
reasonable best efforts to remove such stop order;
(vi) undertake to keep such registration statement and prospectus
effective for a period of twelve months after its effective
date; and
(vii) furnish to such Subscriber as soon as available, copies of any
such registration statement and each preliminary or final
prospectus and any supplement or amendment required to be
prepared pursuant to the foregoing provisions of this section,
all in such quantities as such Subscriber may from time to time
reasonably request.
(g) The Company agrees to pay all underwriting discounts and
commissions, transfer taxes, registration fees and his own counsel fees with
respect to the Shares being registered. The Company will pay all other costs and
expenses in connection with a registration statement to be filed pursuant to
this Section 10 including, without limitation, the fees and expenses of counsel
for the Company, the fees and expenses of its accountants, and all other costs
and expenses incident to the preparation, printing and filing under the Act of
any such registration statement, each prospectus and all amendments and
supplements thereto, the costs incurred in connection with the qualification of
such securities for sale in such reasonable number of states as the Subscriber
have designated, including fees and disbursements of counsel for the Company,
and the costs of supplying a reasonable number of copies of the registration
statement, each preliminary prospectus, final prospectus and any supplements or
amendments thereto to such Subscriber.
(h) The Company agrees to enter into an appropriate cross-indemnity
agreement with any underwriter (as defined in the Securities Act) for such
Subscriber in connection with the filing of a registration statement pursuant to
this section.
(i) If the Company shall file any registration statement including
therein all or any part of the Shares held by the Subscriber, the Company and
each Subscriber shall enter into an appropriate cross-indemnity agreement
whereby the Company shall indemnify and hold harmless the Subscriber against any
losses, claims, damages or liabilities (or actions in respect thereof) arising
out of or based upon any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make statements therein not misleading unless such statement or
omission was made in reliance upon and in conformity with written information
furnished or required to be furnished by any such Subscriber, and each such
Subscriber shall indemnify and hold harmless the Company, each of its directors
and officers who have signed the registration statement and each person, if any,
who controls the Company, within the meaning of the Securities Act against any
losses, claims, damages or liabilities (or actions in respect thereof) arising
out of or based upon any untrue statement or alleged untrue statement of any
material fact, contained in such registration statement, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make statements therein not misleading, if the statement
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or omission was made in reliance upon and in conformity with written information
furnished or required to be furnished by such Subscriber expressly for use in
such registration statement.
(j) For a period of one (1) year after the effective date of the
registration statement filed pursuant to this Section 10, the Company at its
expense will file such post-effective amendments as may be necessary to make
available for use a prospectus meeting the requirements of the Securities Act.
The Company will cause copies of such prospectus to be delivered to any person
selling the shares of Common Stock as may be required by the Securities Act and
the rules and regulations of the SEC.
11. Representations to Survive Delivery.
-----------------------------------
The representations, warranties and agreements of the Company and of
the Subscriber contained in this Agreement will remain operative and in full
force and effect and will survive the payment of the purchase price pursuant to
Section 2 above and the delivery of certificates representing the securities
comprising the Shares.
12. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement contains the entire agreement
----------------
between the parties hereto with respect to the transactions contemplated by this
Agreement and supersedes all prior arrangements or understandings with respect
thereto.
(b) Binding Effect. The provisions of this Agreement shall be binding
--------------
upon and inure to the benefit of the parties hereto, and their respective heirs,
legal representatives, successors and assigns.
(c) Third Party Rights. Notwithstanding any other provision of this
------------------
Agreement, this Agreement shall not create benefits on behalf of any third
party, and this Agreement shall be effective only as between the parties hereto
and their respective successors, heirs and permitted assigns.
(d) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
(e) Notices. Any notice hereunder to or upon either party hereto
-------
shall be deemed to have been duly given for all purposes if (a) in writing and
sent by (i) messenger or an overnight courier service against receipt, or (ii)
certified or registered mail, postage paid, return receipt requested, or (b)
sent by telegram, telecopy, telex or similar electronic means, provided that a
written copy thereof is sent on the same day by postage paid first class mail,
to such party at the following address:
To Subscriber: at its address set forth on the signature page
hereof
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To the Company at: 929 E. Arques Avenue
Sunnyvale, CA 94086
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
(f) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance, with the laws of the State of New York and of the United States
of America, without regard to choice of law provisions.
(g) Remedies. In the event of any actual or prospective breach or
--------
default by either party hereto, the other party shall be entitled to equitable
relief, including remedies in the nature of rescission, injunction and specific
performance. All remedies hereunder are cumulative and not exclusive, and
nothing herein shall be deemed to prohibit or limit either party from pursuing
any other remedy or relief available at law or in equity for such actual or
prospective breach or default, including the recovery of damages.
(h) Disputes and Jurisdiction. Disputes arising under this Agreement
-------------------------
shall be resolved in a federal or state court of general jurisdiction sitting in
either the County and State of New York, or Santa Clara County, State of
California. Each of the parties hereto hereby irrevocably consents and submits
to the jurisdiction of such courts.
(i) Severability. The provisions hereof are severable and in the
------------
event that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the party of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
(j) Assignment, Etc. This Agreement may not be assigned without the
----------------
prior written consent of the parties, and any purported assignment without such
consent shall be void and without effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement is not intended, and shall not be deemed,
to create or confer any right or interest for the benefit of any person not a
party hereto.
(k) Amendment. Except as otherwise provided herein, no amendment of
---------
this Agreement shall be valid or effective, unless in writing and signing by or
on behalf of the parties hereto.
(l) Waiver. No course of dealing or omission or delay on the part of
------
either party hereto in asserting or exercising any right hereunder shall
constitute or operate as a waiver of any such right. No waiver of any provision
hereof shall be effective, unless in writing and signed by or
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on behalf of the party to be charged therewith. No waiver shall be deemed a
continuing waiver or waiver in respect of any other or subsequent breach or
default, unless expressly so stated in writing.
(m) Further Assurances. Each party hereto covenants and agrees
------------------
promptly to execute, deliver, file or record such agreements, instruments,
certificates and other documents and to perform such other and further acts as
the other party hereto may reasonably request or as may otherwise be necessary
or proper to consummate and perfect the transactions contemplated hereby.
(n) Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original and which together shall constitute
one and the same agreement.
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# of Shares Purchased
- --------------------- -------------------------------------------------
Subscriber (Signature)
# of Shares Purchased
- --------------------- -------------------------------------------------
Subscriber (Signature, if more than one investor)
Total Dollar Investment
of Subscriber
$ ___________________
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Print Name
--------------------------------------------------
Print Name (If more than one investor)
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Address
THE COMPANY HEREBY ACCEPTS THE SUBSCRIPTION EVIDENCED BY THIS SUBSCRIPTION
AGREEMENT AND QUESTIONNAIRE:
By: ______________________________________________
Name: ______________________________________
Title: _____________________________________
Dated: ________________
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<PAGE>
SUBSCRIBER INFORMATION
- --------------------------------------------------------------------------------
(Please print name(s) in which the Shares are to be issued)
- --------------------------------------------------------------------------------
Taxpayer I.D. No. Taxpayer I.D. No.
(If more than one investor)
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State Zip Code
- --------------------------------------------------------------------------------
Telephone Number
- --------------------------------------------------------------------------------
Occupation
Check One:
_______ Individual Ownership _______ Tenants in Common
_______ Joint Tenants (JTWROS) _______ Corporation
_______ Partnership _______ Other
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<PAGE>
CERTIFICATE OF SIGNATORY
(To be completed if Shares are being subscribed for by an Entity)
I, _______________________, am the _________________________ of
____________________________________________ (the "Entity").
I certify that I am empowered and duly authorized by the Entity to
execute and carry out the terms of the Subscription Agreement and Questionnaire
and to purchase and hold the Shares, and certify further that such Subscription
Agreement and Questionnaire has been duly and validly executed on behalf of the
Entity and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ________ day of _________,
1998.
--------------------------------------------
(Signature)
--------------------------------------------
(Title)
--------------------------------------------
(Please Print Name)
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