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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO 13d-2(a)
(Amendment No. ___)1
GLOBALINK, INC. .
(Name of Issuer)
Common Stock, $.01 par value per share
(Title Class of Securities)
37936V 102
(CUSIP Number)
David Alan Miller, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
(212) 818-8800
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
October 20, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
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1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
(Continued on following pages)
(Page 1 of 6 Pages)
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SCHEDULE 13D
CUSIP No. 37936V 102 Page 2 of 6 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ronald I. Heller
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF, OO - See Item 3
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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| 7 SOLE VOTING POWER
|
| 318,182 Shares
NUMBER OF |-----------------------------------------------------------
SHARES | 8 SHARED VOTING POWER
BENEFICIALLY |
OWNED BY | 220,000 Shares
EACH |-----------------------------------------------------------
REPORTING | 9 SOLE DISPOSITIVE POWER
PERSON |
WITH | 318,182 Shares
|-----------------------------------------------------------
| 10 SHARED DISPOSITIVE POWER
|
| 220,000 Shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
856,364 Shares
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.1%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
CUSIP No. 37936V 102 Page 3 of 6 Pages
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Item 1. Security and Issuer
The class of equity securities to which this statement relates
is the common stock, $.01 par value ("Common Stock"), of Globalink, Inc.
("Issuer"), a Delaware corporation, whose principal executive offices are
located at 9302 Lee Highway, 12th Floor, Fairfax, Virginia 22031.
The percentage of beneficial ownership reflected in this
Statement is based upon 9,160,236 shares of Common Stock outstanding on October
20, 1997, which number has been obtained directly from the Issuer.
Item 2. Identity and Background
(a) Name: This statement is filed on behalf of Ronald I. Heller ("Heller").
(b) Business Address: Heller has a business address of c/o M.H. Meyerson &
Co., Inc., Newport Office Tower, 34th Floor, 525 Washington Boulevard, Jersey
City, New Jersey 07310.
(c) Principal Business: Heller is principally engaged in the investment
banking business for M.H. Meyerson & Co., Inc. ("Meyerson"), an investment
banking firm with its offices at Newport Office Tower, 34th Floor, 525
Washington Boulevard, Jersey City, New Jersey 07310.
(d) Convictions: During the last five years, Heller has not been convicted
in any criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) Regulatory Proceedings: During the last five years, Heller has not been
a party to any civil proceeding of a judicial or administrative body of
competent jurisdiction resulting in any judgment, decree or final order against
him enjoining him from engaging in future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws, except that Heller consented to certain
findings by the Market Surveillance Committee ("MSC") of the National
Association of Securities Dealers ("NASD"). Specifically, effective January 17,
1994, Heller consented to findings that R.H. Damon & Co., Inc. ("RHD"), an
investment banking firm of which Heller was a principal, distributed shares of
Star Classic, Inc. in violation of certain NASD rules at a time when RHD acted
as one of that public company's common stock's numerous market makers. While it
was noted that such violations occurred without scienter on Heller's part and
that the transactions in question were made in a negotiated, large block
transaction accomplished through the over-the-counter market at prices believed
by RHD to be the then current market prices, the MSC stated that RHD was
negligent to make such transactions without first withdrawing from market making
activities for the requisite period of time. It was also found that certain of
RHD's compliance procedures were inadequate and, although Heller had passed the
Series 24 principal's examination, for a period of time before passing such
examination, he served as the principal supervising RHD's trading. Heller
consented to a $20,000 fine, a two-week suspension from association with an NASD
member firm in any capacity and a two-month suspension from association with an
NASD member firm in a principal capacity, which latter suspension ended on March
17, 1994.
<PAGE>
CUSIP No. 37936V 102 Page 4 of 6 Pages
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(f) Citizenship: Heller is a citizen of the United States.
Item 3. Source and Amounts of Funds or Other Consideration
Heller used personal funds to purchase the securities, as described below in
Item 5(c).
Item 4. Purpose of Transactions
Heller acquired the securities specified in Item 5(c) of this
Schedule 13D in order to obtain individual equity positions in the Issuer for
investment purposes. Heller may acquire or dispose of additional shares of the
Issuer, but does not presently intend to do so, although this intention may
change depending upon market conditions. Heller has no present plans which
relate to or would result in: an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving the Issuer or any of its
subsidiaries; a sale or transfer of a material amount of assets of the Issuer or
any of its subsidiaries; any change in the present board of directors or
management of the Issuer, including any plans or proposals to change the number
or term of directors or to fill any existing vacancies on the board; any
material change in the present capitalization or dividend policy of the Issuer;
any other material change in the Issuer's business or corporate structure;
changes in the Issuer's charter, bylaws or instruments corresponding thereto or
other actions which may impede the acquisition of control of the Issuer by any
person; a class of securities of the Issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association; a class of
equity securities of the Issuer to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities and Exchange Act of
1934; or any action similar to the above.
Item 5. Interest in Securities of the Issuer
(a) Heller directly owns and holds in his individual account
200,000 units ("Units") purchased from the Issuer in a private offering
("Private Offering"), each Unit consisting of one share of Common Stock and one
Warrant ("Warrant"). Each Warrant entitles its holder to purchase one share of
Common Stock until October 19, 2002, at an exercise price of $1.75. Heller is
deemed to beneficially own the 200,000 shares of Common Stock underlying the
Warrants since the Warrants are currently exercisable. Heller also directly owns
and holds in his individual account 18,182 Unit Purchase Options ("UPOs"), which
are exercisable at $1.51 per Unit until October 19, 2002. Heller is deemed to
beneficially own the 18,182 shares of Common Stock underlying the Units and the
18,182 shares of Common Stock underlying the Warrants included in the Units
since they are both immediately exercisable.
Heller and his wife jointly own 220,000 shares of Common Stock
in a joint account ("Joint Account"). As custodian for a custodial account
opened by Heller for the benefit of Heller's daughter, Rachel ("Rachel
Account"), Heller may be deemed to beneficially own the 100,000 shares of Common
Stock held in such trust. Heller may also be deemed to beneficially own the
100,000 shares of Common Stock held in a custodial account opened by Heller's
wife for the benefit of Heller's son, Evan ("Evan Account") pursuant to
interpretations of the Securities and Exchange Commission, but disclaims
<PAGE>
CUSIP No. 37936V 102 Page 5 of 6 Pages
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beneficial ownership over such shares of Common Stock. Accordingly, Heller may
be deemed to beneficially own 856,364 shares of Issuer's Common Stock, or
approximately 9.1% of the outstanding shares of Common Stock.
(b) Heller has sole voting and dispositive power over the
200,000 shares of Common Stock held in his individual account, and over the
additional 236,364 shares of Common Stock underlying the Units in the UPO and
the Warrants he is deemed to beneficially own. Heller has shared voting and
dispositive power over the 220,000 shares of Common Stock held in the Joint
Account. As custodian of the Rachel Account, Heller has sole voting and
dispositive power over the 100,000 shares of Common Stock held in such account.
(c) On September 4, 1996, (i) Heller and his wife, through the
Joint Account, purchased 220,000 shares of Common Stock in the open market for a
purchase price of $1.125 per share; (ii) Heller's wife, as custodian for the
Evan Account, purchased 100,000 shares of Common Stock in the open market for a
purchase price of $1.125 per share; and (iii) Heller, as custodian for the
Rachel Account, purchased 100,000 shares of Common Stock in the open market for
a purchase price of $1.125 per share. On October 20, 1997, Heller, through his
individual account, (i) purchased 200,000 Units at a purchase price of $1.375
per Unit; and (ii) acquired 18,182 UPOs at a nominal purchase price.
(d) Heller's wife shares the right to receive and the power to
direct the receipt of dividends from and/or the proceeds from the sale of the
220,000 shares of Common Stock held in the Joint Account.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to the Securities of the Issuer
Pursuant to the terms of subscription agreements between the
Issuer and each purchaser in the Private Offering, the Warrants and UPOs, the
Issuer is required to file a registration statement within sixty days upon
written demand of the holders of more than 50% of the securities.
Item 7. Material to be Filed as Exhibits
4.1 Subscription Agreement
4.2 Warrant for the purchase of 200,000 shares of Common Stock
4.3 Purchase Option for 18,182 Units
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: October 22, 1997
/s/ Ronald I. Heller
-----------------------
Ronald I. Heller
<PAGE>
EXHIBIT 4.1
Name of Subscriber _________________________
SUBSCRIPTION AGREEMENT
Globalink, Inc.
9302 Lee Highway, 12th Floor
Fairfax, Virginia 22031
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 M. H. Meyerson &
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. M.H. Meyerson &
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 "M.H. Meyerson & 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, Keogh 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.
9302 Lee Highway, 12th Floor
Fairfax, Virginia 22031
Attention: Harry E. Hagerty, Jr.
Fax: (703) 273-3866
In either case,
with a copy to: Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
Attention: David Alan Miller, Esq.
Fax: (212) 818-8881
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
- --------------------------------------- -----------------------------
Signature (Individual) Name of Entity, if any
By:
-------------------------
*Signature
Its
- ---------------------------------------- -------------------------
Signature (all record holders should sign) Title
- ---------------------------------------- -----------------------------
Name(s) Typed or Printed Name Typed or Printed
Address to Which Correspondence Address to Which Correspondence
Should be Directed Should be Directed
- ----------------------------------------- -----------------------------
- ----------------------------------------- -----------------------------
- ----------------------------------------- -----------------------------
City, State and Zip Code City, State and Zip Code
- ----------------------------------------- -----------------------------
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:
-------------------------------
Harry E. Hagerty, Jr.
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.
----------------------
(Signature)
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EXHIBIT 4.2
NEITHER THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON THE
EXERCISE HEREOF ("WARRANT SHARES"), AS OF THE DATE OF ISSUANCE HEREOF, HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT
THERETO UNDER THE ACT AND COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAW,
OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED. THE COMPANY'S SUBSCRIPTION
AGREEMENT WITH THE HOLDER CONTAINS ADDITIONAL PROVISIONS RESTRICTING THE
TRANSFER OF THIS WARRANT AND THE WARRANT SHARES AND THIS WARRANT AND SUCH
SUBSCRIPTION AGREEMENT SET FORTH THE COMPANY'S OBLIGATIONS TO REGISTER THE
RESALE OF THE WARRANT SHARES. A COPY OF SUCH SUBSCRIPTION AGREEMENT IS AVAILABLE
FOR INSPECTION AT THE COMPANY'S OFFICE.
For the Purchase of
200,000 shares of
No. 007 Common Stock
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF
GLOBALINK, INC.
(A Delaware corporation)
Globalink, Inc. ("Company"), hereby certifies that for value received,
Ronald I. Heller, or his, her or its registered assigns ("Registered Holder"),
is entitled, subject to the terms set forth below, to purchase from the Company,
at any time or from time to time during the period commencing on October 20,
1997, and ending on October 19, 2002, 200,000 shares of Common Stock, $.01 par
value, of the Company ("Common Stock"),at a purchase price equal to $1.75 per
share. The number of shares of Common Stock purchasable upon exercise of this
Warrant, and the purchase price per share, each as adjusted from time to time
pursuant to the provisions of this Warrant, are hereinafter referred to as the
"Warrant Shares" and the "Purchase Price," respectively.
1. Exercise.
1.1 Procedure. This Warrant may be exercised by the Registered Holder,
in whole or in part, by the surrender of this Warrant (with the Notice of
Exercise Form attached hereto as Exhibit I duly executed by such Registered
Holder) at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of an amount equal to the then applicable Purchase
Price multiplied by the number of Warrant Shares then being purchased upon such
exercise.
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1.2 Date of Exercise. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided in
subsection 1.1 above. At such time, the person or persons in whose name or names
any certificates for Warrant Shares shall be issuable upon such exercise as
provided in subsection 1.3 below shall be deemed to have become the holder or
holders of record of the Warrant Shares represented by such certificates.
1.3 Cashless Exercise.
(i) Determination of Amount. In lieu of the payment of the
Purchase Price in the manner required by Section 1.1, the Registered Holder
shall have the right (but not the obligation) to pay the Purchase Price for the
Warrants being purchased with this Warrant upon exercise by the surrender to the
Company of any exercisable but unexercised portion of this Warrant having a
value at the close of trading on the last trading day immediately preceding the
exercise of this Warrant, equal to the Purchase Price multiplied by the number
of Warrants being purchased upon exercise ("Cashless Exercise Right"). The sum
of (a) the number of Warrants being purchased upon exercise of the
non-surrendered portion of this Warrant pursuant to this Cashless Exercise Right
and (b) the number of Warrants underlying the portion of this Warrant being
surrendered, shall not in any event be greater than the total number of Warrants
purchasable upon the complete exercise of this Warrant if the Purchase Price
were paid in cash. The value of the portion of the Warrant being surrendered
shall equal the remainder derived by subtracting (a) the Purchase Price
multiplied by the number of Warrants underlying the portion of this Warrant
being surrendered from (b) the "Market Price" (as defined below) of the Warrants
multiplied by the number of Warrants underlying the portion of this Warrant
being surrendered. As used herein, the term "Market Price" at any date shall be
deemed to be the last reported sale price of a share of Common Stock on such
date, or, in case no such reported sale takes place on such date, the average of
the last reported sale prices for the immediately preceding three trading days,
in either case as officially reported by the principal securities exchange on
which the Common Stock is listed or admitted to trading, or, if the Common Stock
is not listed or admitted to trading on any national securities exchange or if
any such exchange on which the Common Stock is listed is not its principal
trading market, the last reported sale price as furnished by the National
Association of Securities Dealers ("NASD") through the Nasdaq National Market or
SmallCap Market, or, if applicable, the OTC Bulletin Board, or if the Common
Stock is not listed or admitted to trading on the Nasdaq National Market or
SmallCap Market or OTC Bulletin Board or similar organization, as determined in
good faith by resolution of the Board of Directors of the Company, based on the
best information available to it.
(ii) Mechanics of Cashless Exercise. The Cashless Exercise
Right may be exercised by the Holder on any business day on or after the
Commencement Date and not later than the Expiration Date by delivering to the
Company the Purchase Option with a duly executed exercise form attached hereto
with the cashless exercise section completed.
1.4 Issuance of Certificate. As soon as practicable after the exercise
of the purchase right represented by this Warrant, the Company at its expense
will use its best efforts to cause to be issued in the name of, and delivered
to, the Registered Holder, or, subject to the terms and conditions hereof, to
such other individual or entity as such Holder (upon payment by such Holder of
any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
shares of Warrant Shares to which such Registered Holder shall be entitled upon
such exercise plus, in lieu of any fractional
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<PAGE>
share to which such Registered Holder would otherwise be entitled, cash in an
amount determined pursuant to Section 3 hereof, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, stating on the face or faces
thereof the number of shares currently stated on the face of this Warrant minus
the number of such shares purchased by the Registered Holder upon such exercise
as provided in subsection 1.1 above.
2. Adjustments.
2.1 Split, Subdivision or Combination of Shares. If the outstanding
shares of the Company's Common Stock at any time while this Warrant remains
outstanding and unexpired shall be subdivided or split into a greater number of
shares, or a dividend in Common Stock shall be paid in respect of Common Stock,
the Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend shall, simultaneously with the effectiveness of
such subdivision or split or immediately after the record date of such dividend
(as the case may be), shall be proportionately decreased. If the outstanding
shares of Common Stock shall be combined or reverse-split into a smaller number
of shares, the Purchase Price in effect immediately prior to such combination or
reverse split shall, simultaneously with the effectiveness of such combination
or reverse split, be proportionately increased. When any adjustment is required
to be made in the Purchase Price, the number of shares of Warrant Shares
purchasable upon the exercise of this Warrant shall be changed to the number
determined by dividing (i) an amount equal to the number of shares issuable upon
the exercise of this Warrant immediately prior to such adjustment, multiplied by
the Purchase Price in effect immediately prior to such adjustment, by (ii) the
Purchase Price in effect immediately after such adjustment.
2.2 Reclassification Reorganization, Consolidation or Merger. In the
case of any reclassification of the Common Stock (other than a change in par
value or a subdivision or combination as provided for in subsection 2.1 above),
or any reorganization, consolidation or merger of the Company with or into
another corporation (other than a merger or reorganization with respect to which
the Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially all
of the assets of the Company, or the payment of a liquidating distribution then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that the
Registered Holder of this Warrant shall have the right thereafter to receive
upon the exercise hereof, the kind and amount of shares of stock or other
securities or property which such Registered Holder would have been entitled to
receive if, immediately prior to any such reorganization, reclassification,
consolidation, merger, sale or liquidating distribution, as the case may be,
such Registered Holder had held the number of shares of Common Stock which were
then purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined by the Board of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the Registered Holder of
this Warrant such that the provisions set forth in this Section 2 (including
provisions with respect to the Purchase Price) shall thereafter be applicable,
as nearly as is reasonably practicable, in relation to any shares of stock or
other securities or property thereafter deliverable upon the exercise of this
Warrant.
2.3 Price Adjustment. No adjustment in the per share exercise price
shall be required unless such adjustment would require an increase or decrease
in the Purchase Price of at least $0.01; provided, however, that any adjustments
which by reason of this paragraph are not required
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<PAGE>
to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 2 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
2.4 Price Reduction. Notwithstanding any other provision set forth in
this Warrant, at any time and from time to time during the period that this
Warrant is exercisable, the Company in it sole discretion may reduce the
Purchase Price or extend the period during which this Warrant is exercisable.
2.5 No Impairment. The Company will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 2 and in the taking of all such actions as may be necessary or
appropriate in order to protect against impairment of the rights of the
Registered Holder of this Warrant to adjustments in the Purchase Price.
2.6 Notice of Adjustment. Upon any adjustment of the Purchase Price or
extension of the Warrant exercise period, the Company shall forthwith give
written notice thereto to the Registered Holder of this Warrant describing the
event requiring the adjustment, stating the adjusted Purchase Price and the
adjusted number of shares purchasable upon the exercise hereof resulting from
such event, and setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
3. Fractional Shares. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall make an adjustment
thereof in cash on the basis of the closing sale price of the Warrant Shares on
the American Stock Exchange ("AMEX") or if the securities are traded or Nasdaq,
the closing sale price expected by Nasdaq on the trading day immediately prior
to the date of exercise, whichever is applicable, or if neither is applicable,
then on the basis of the then fair market value of the Warrant Shares as shall
be reasonably determined by the Board of Directors of the Company.
4. Limitation on Sales. Each holder of this Warrant acknowledges that this
Warrant and the Warrant Shares, as of the date of original issuance of this
Warrant, have not been registered under the Securities Act of 1933, as amended
("Act"), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise
in the absence of (a) an effective registration statement under the Act as to
this Warrant or such Warrant Shares or (b) an opinion of counsel, satisfactory
to the Company, that such registration and qualification are not required. The
Warrant Shares issued upon exercise thereof shall be imprinted with a legend in
substantially the following form:
"THE ISSUANCE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SAID ACT OR APPLICABLE
STATE SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
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<PAGE>
5. Certain Dividends. If the Company pays a dividend or makes a distribution on
the Common Stock ("Dividend"), other than a stock dividend payable in shares of
Common Stock, then the Company will pay or distribute to the Registered Holder
of this Warrant, upon the exercise hereof, in addition to the Warrant Shares
purchased upon such exercise, the Dividend which would have been paid to such
Registered Holder if it had been the owner of record of such Warrant Shares
immediately prior to the date on which a record is taken for such Dividend or,
if no record is taken, the date as of which the record holders of Common Stock
entitled to such Dividend are determined.
6. Registration Rights of Warrant Holder.
6.1 Registration. Upon the written demand of the holders of at least
51% of the Warrants and/or the Warrant Shares ("Majority Holders"), the Company
shall file a Registration Statement under the Act ("Registration Statement")
with the Securities and Exchange Commission and in such states as shall be
reasonably specified by M.H. Meyerson & Co. ("Placement Agent") registering for
reoffer and resale the Warrant Shares. The Company agrees to use its best
efforts to file the Registration Statement and have it declared effective within
60 days after the demand of the Majority Holder. The Company shall keep the
Registration Statement effective and current until all the securities thereunder
are sold or may be sold freely under an appropriate exemption under the Act and
the blue sky laws of the states selected by the Placement Agreement. The Company
covenants and agrees to give written notice of its receipt of any demand by the
Majority Holders to all other holders within ten days from the date of the
receipt of any demand.
6.2 Expenses. 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 the Registered Holder and effecting the issuance
and transfer of the Warrant Shares on an expeditious basis.
6.3 Indemnification. The Company shall indemnify the Registered
Holder(s) of the Warrant Shares to be sold pursuant to any registration
statement hereunder and each person, if any, who controls such Registered
Holders within the meaning of Section 15 of the Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss,
claim, damage, expense or liability (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 Act, the Exchange Act or any other statute or at 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 is included the Warrant Shares;
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 Warrant Shares under the securities laws thereof or filed with the
Commission, any state securities commission or agency, AMEX 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 conformity with,
written information furnished to the Company with respect to the Registered
Holders expressly for use in any preliminary prospectus, the Registration
Statement or prospectus, or any amendment
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<PAGE>
or supplement thereof, or in any application, as the case may be. The Company
agrees promptly to notify the Registered Holders 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
Warrant Shares or in connection with the Registration Statement or prospectus.
7. Redemption.
7.1 Redemption Rights. The Company may call all (but not less than all)
of the Warrants for redemption at any time after October ___, 1999, at the price
of $.01 per Warrant, upon notice referred to in Section 7.2, provided that (i)
the Warrant Shares underlying the Warrants have been registered for resale by
means of the Registration Statement; (ii) the Registration Statement is current
and effective at the time the aforementioned notice is sent and the Warrants are
called by the Company; and (iii) the last sales price of the Common Stock has
been at least $5.00 on each of the twenty (20) consecutive trading days
immediately preceding the day on which notice of redemption is given.
7.2 Date Fixed for Redemption; Notice of Redemption. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a date
for the redemption and mail a notice of redemption by first class mail, postage
prepaid, not less than 20 days from the date fixed for redemption to the holders
of the Warrants at their last address as they shall appear on the registration
books. Any notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the registered holder received
such notice.
7.3 Exercise After Notice of Redemption. The Warrants may be exercised
in accordance with Section 1 of this Agreement at any time after notice of
redemption shall have been given by the Company pursuant to Section 7.2 hereof
and prior to the time and date fixed for redemption. On and after the redemption
date, the holder of the Warrants shall have no further rights except to receive,
upon surrender of the Warrants, the redemption price.
8. Notices of Record Date. In case:
(i) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to subscribe
for or purchase any shares of any class or any other securities, or to receive
any other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company, or
(iii) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, then, and in each such case, the
Company will mail or cause to be mailed to the Registered Holder of this Warrant
a notice specifying, as the case may be, (i) the date on which a record is to be
taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or (ii) the
effective date on which such reorganization, reclassification, consolidation,
merger, transfer, dissolution, liquidation or winding-up is to take place, and
the time,
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if any is to be fixed, as of which the holders of record of Common Stock (or
such other stock or securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be mailed at least ten
(10) days prior to the record date or effective date for the event specified in
such notice, provided that the failure to mail such notice shall not affect the
legality or validity of any such action.
9. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Common Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. The Company
shall apply for listing, and obtain such listing, for the Warrant Shares on AMEX
and each exchange on which the Common Stock is listed, at the earliest time that
such listing may be obtained in accordance with the rules and regulations of
AMEX and the exchange and maintain such listing until the seventh anniversary of
the date of original issuance of this Warrant.
10. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
11. Transfers, etc.
11.1 Warrant Register. The Company will maintain a register containing
the names and addresses of the Registered Holders of this Warrant. Any
Registered Holder may change its, his or her address as shown on the warrant
register by written notice to the Company requesting such change.
11.2 Registered Holder. Until any transfer of this Warrant is made in
the warrant register, the Company may treat the Registered Holder of this
Warrant as the absolute owner hereof for all purposes; provided, however, that
if and when this Warrant is properly assigned in blank, the Company may (but
shall not be obligated to) treat the bearer hereof as the absolute owner hereof
for all purposes, notwithstanding any notice to the contrary.
12. No Rights as Stockholder. Until the exercise of this Warrant, the Registered
Holder of this Warrant shall not have or exercise any rights by virtue hereof as
a stockholder of the Company.
13. Successors. The rights and obligations of the parties to this Warrant will
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, assigns, pledgees, transferees and purchasers.
Without limiting the foregoing, the registration rights set forth in this
Warrant shall inure to the benefit of the Registered Holder and all the
Registered Holder's successors, heirs, pledgees, assignees, transferees and
purchasers of this Warrant and the Warrant Shares.
14. Change or Waiver. Any term of this Warrant may be changed or waived only by
an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
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15. Headings. The headings in this Warrant are for purposes of reference only
and shall not limit or otherwise affect the meaning of any provision of this
Warrant.
16. Governing Law. This Warrant shall be governed by and construed in accordance
with the laws of the State of New York as such laws are applied to contracts
made and to be fully performed entirely within that state between residents of
that state.
17. Jurisdiction and Venue. The Company (i) agrees that any legal suit, action
or proceeding arising out of or relating to this Warrant 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.
18. Mailing of Notices, etc. All notices and other communications under this
Warrant (except payment) shall be in writing and shall be sufficiently given if
delivered to the addressees in person, by Federal Express or similar receipt
delivery, by facsimile delivery or, if mailed, postage prepaid, by certified
mail, return receipt requested, as follows:
Registered Holder: To his or her address on page 1 of this Warrant.
The Company: Globalink, Inc.
9302 Lee Highway
Fairfax, Virginia 22031
Attention: Harry E. Hagerty
Fax: (703) 273-3405
In either case,
with a copy to: Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
Attention: David Alan Miller, Esq.
Fax: (212) 818-8881
or to such other address as any of them, by notice to the others may designate
from time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or by mailing.
GLOBALINK, INC.
By:
--------------------------------
Name: Harry E. Hagerty, Jr.
Title: Chief Executive Officer
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EXHIBIT I
NOTICE OF EXERCISE
TO: Globalink, Inc.
9302 Lee Highway
Fairfax, Virginia 22031
1. The undersigned hereby elects to purchase ________ shares of the Common Stock
of Globalink, Inc., pursuant to terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full, together with all
applicable transfer taxes, if any.
or
The undersigned hereby elects to purchase _________ shares of Common
Stock of Globalink, Inc. by surrender of the unexercised portion of the within
Warrant (with a "Value" of $__________ based on a "Market Price" of
$___________).
Please issue the Common Stock underlying the Warrants in accordance
with the instructions given below.
2. Please issue a certificate or certificates representing said shares of the
Common Stock in the name of the undersigned or in such other name as is
specified below:
3. The undersigned represents that it will sell the shares of Common Stock
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended, or an exemption from registration thereunder.
4. |_| I acknowledge that this exercise of the Warrant represented by this
Notice of Exercise was solicited by M.H. Meyerson & Co., Inc.
|_| The exercise of this Warrant represented by this Notice of Exercise was
not solicited by M.H. Meyerson & Co., Inc.
-------------------------------
Signature of Holder
Please issue securities as follows: -------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
-------------------------------
-------------------------------
(Taxpayer Identification Number)
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EXHIBIT 4.3
THE SECURITIES EVIDENCED BY THIS INSTRUMENT, AS OF THE DATE OF ORIGINAL ISSUANCE
HEREOF, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT AND APPLICABLE SECURITIES LAWS OF ANY STATE OR JURISDICTION, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M. EASTERN TIME, OCTOBER 19, 2002.
PURCHASE OPTION
For 18,182 Units
of
Globalink, Inc.
(A Delaware Corporation)
Purchase Option.
THIS CERTIFIES THAT, in consideration of $.001 per option duly
paid by or on behalf of Ronald I. Heller ("Holder"), as registered owner of this
Purchase Option, to Globalink, Inc. ("Company"), Holder is entitled, at any time
or from time to time at or after October 20, 1997 ("Commencement Date"), and at
or before 5:00 p.m., Eastern Time, October 19, 2002 ("Expiration Date"), but not
thereafter, to subscribe for, purchase and receive, in whole or in part, up to
18,182 Units of the Company ("Units"). Each Unit consists of one share of Common
Stock of the Company, $.01 par value ("Common Stock") and one Common Stock
Purchase Warrant ("Warrant"). Each Warrant is to purchase one share of Common
Stock for a period of five years from the closing date ("Closing Date") of the
sale of Units in a private placement ("Private Placement") through M. H.
Meyerson & Co., Inc. ("MHM") as placement agent, as described in the Agency
Agreement between the Company and MHM dated as of October 15, 1997. Each Unit
and Warrant is the same as the Units and Warrants sold in the Private Placement.
The Units, shares of Common Stock and Warrants issuable hereunder are sometimes
collectively referred to herein as the "Securities." If the Expiration Date is a
day on which banking institutions are authorized by law to close, then this
Purchase Option may be exercised on the next succeeding day which is not such a
day in accordance with the terms herein. This Purchase Option is initially
exercisable at $1.51 per Unit purchased; provided, however, that upon the
occurrence of any of the events specified in Section 6 hereof, the rights
granted by this Purchase Option, including the exercise price for the Units and
the number of shares of Common Stock and Warrants to be received upon such
exercise, shall be adjusted as therein specified. The term "Exercise Price"
shall mean the initial exercise price or the adjusted exercise price, depending
on the context. This Purchase Option is one of a number of such options issued
by the Company to MHM and its designees ("Purchase Options").
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1. Exercise.
1.1 Exercise Form. In order to exercise this Purchase Option, the
exercise form attached hereto must be duly executed and completed and delivered
to the Company, together with this Purchase Option and payment of the Exercise
Price for the Securities being purchased by wire transfer, certified check or
official bank check. If the subscription rights represented hereby are not
exercised at or before 5:00 p.m., Eastern time, on the Expiration Date this
Purchase Option shall become and be void without further force or effect, and
all rights represented hereby shall cease and expire.
1.2 Legend. Each certificate for the securities purchased under this
Purchase Option shall bear a legend as follows unless such Securities have been
registered under the Securities Act:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended
("Securities Act") or applicable state law. The securities may
not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Securities Act, or pursuant to an exemption from registration
under the Securities Act and applicable state law."
1.3 Cashless Exercise.
1.3.1 Determination of Amount. In lieu of the payment of the
Exercise Price in the manner required by Section 2.1, the Holder shall have the
right (but not the obligation) to pay the Exercise Price for the Units being
purchased with this Purchase Option upon exercise by the surrender to the
Company of any exercisable but unexercised portion of this Purchase Option
having a "Value" (as defined below), at the close of trading on the last trading
day immediately preceding the exercise of this Purchase Option, equal to the
Exercise Price multiplied by the number of Units being purchased upon exercise
("Cashless Exercise Right"). The sum of (a) the number of Units being purchased
upon exercise of the non-surrendered portion of this Purchase Option pursuant to
this Cashless Exercise Right and (b) the number of Units underlying the portion
of this Purchase Option being surrendered, shall not in any event be greater
than the total number of Units purchasable upon the complete exercise of this
Purchase Option if the Exercise Price were paid in cash. The "Value" of the
portion of the Purchase Option being surrendered shall equal the remainder
derived by subtracting (a) the Exercise Price multiplied by the number of Units
underlying the portion of this Purchase Option being surrendered from (b) the
"Market Price" (as defined below) of the Units multiplied by the number of Units
underlying the portion of this Purchase Option being surrendered. As used
herein, the term "Market Price" at any date shall be deemed to be the last
reported sale price of a share of Common Stock on such date, or, in case no such
reported sale takes place on such date, the average of the last reported sale
prices for the immediately preceding three trading days, in either case as
officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or if any such exchange
on which the Common Stock is listed is not its principal trading market, the
last reported sale price as furnished by the National Association of Securities
Dealers ("NASD") through the Nasdaq National Market or SmallCap Market, or, if
applicable, the OTC Bulletin Board, or if the Common Stock is not listed or
admitted to trading on the Nasdaq National Market or SmallCap Market or OTC
Bulletin Board or similar
2
<PAGE>
organization, as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to it.
1.3.2 Mechanics of Cashless Exercise. The Cashless Exercise
Right may be exercised by the Holder on any business day on or after the
Commencement Date and not later than the Expiration Date by delivering to the
Company the Purchase Option with a duly executed exercise form attached hereto
with the cashless exercise section completed.
2. Transfer.
2.1 General Restrictions. The registered Holder of this Purchase
Option, by its acceptance hereof, agrees that it will not sell, transfer or
assign or hypothecate this Purchase Option, other than in compliance with or
exemptions from applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment form attached
hereto duly executed and completed, together with this Purchase Option and
payment of all transfer taxes, if any, payable in connection therewith. The
Company shall immediately transfer this Purchase Option on the books of the
Company and shall execute and deliver a new Purchase Option or Purchase Options
of like tenor to the appropriate assignee(s) expressly evidencing the right to
purchase the aggregate number of Units purchasable hereunder or such portion of
such number as shall be contemplated by any such assignment.
2.2 Restrictions Imposed by the Act. This Purchase Option and the
Securities underlying this Purchase Option shall not be transferred unless and
until (i) the Company has received the opinion of counsel reasonably acceptable
to the Company that this Purchase Option or the Securities, as the case may be,
may be transferred pursuant to an exemption from registration under the Act and
applicable state law, the availability of which is established to the reasonable
satisfaction of the Company, or (ii) a registration statement relating to such
Purchase Option or Securities, as the case may be, has been filed by the Company
and declared effective by the Securities and Exchange Commission ("Commission").
3. New Purchase Options to be Issued.
3.1 Partial Exercise or Transfer. Subject to the restrictions in
Section 3 hereof, this Purchase Option may be exercised or assigned in whole or
in part. In the event of the exercise or assignment hereof in part only, the
Company shall cause to be delivered to the Holder without charge a new Purchase
Option of like tenor in the name of the Holder evidencing the right to purchase
the aggregate number of Units as to which this Purchase Option has not been
exercised or assigned.
3.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Purchase Option and of reasonably satisfactory indemnification, the Company
shall execute and deliver a new Purchase Option of like tenor and date. Any such
new Purchase Option executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual obligation
on the part of the Company.
3
<PAGE>
4. Registration Rights.
4.1 Obligation to Register. Upon the written demand of the holders of
at least 51% or more of the Warrants and/or the underlying shares of Common
Stock ("Majority Holders"), the Company shall file a registration statement
("Registration Statement") under the Securities Act with the Commission,
registering for resale the Common Stock issuable upon exercise of this Purchase
Option, the Common Stock issuable upon exercise of the Warrants underlying this
Purchase Option and the Common Stock and Common Stock issuable upon exercise of
Warrants included in the Units sold to investors in the Private Placement. The
Company shall use its best efforts to file the Registration Statement and have
it declared effective within 60 days after the demand by the Majority Holders.
4.2 Terms. The Company shall bear all fees and expenses it incurs in
connection with the preparation, filing, modifying and amending the Registration
Statement, providing reasonable numbers of the prospectus contained therein to
the Holders and effecting the issuance and transfer of the securities referred
to under Section 4.1 hereof ("Registrable Securities"), but the Holders shall
pay any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. The Company agrees to qualify or register the
Registrable Securities in such states as are reasonably requested by the
Holder(s); provided, however, that in no event shall the Company be required to
register the Registrable Securities in a state in which such registration would
cause (i) the Company to be obligated to register or license to do business in
such state, or (ii) the principal stockholders of the Company to be obligated to
escrow their shares of capital stock of the Company. The Company shall cause any
Registration Statement filed pursuant to this Section 5 to remain effective and
current until the Registrable Securities may be sold without any limitation
under the Securities Act by the Holders thereof.
4.3 General Terms.
4.3.1 Indemnification. The Company shall indemnify the
Holder(s) of the Securities to be sold pursuant to any registration statement
hereunder and each person, if any, who controls such Holders within the meaning
of Section 15 of the Securities Act and/or Section 20(a) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim,
damage, expense or liability (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 at 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 is 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 Commission, any state securities commission or agency, Nasdaq or any
securities exchange; or the omission or alleged omission therefrom of
4
<PAGE>
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 conformity with, written information furnished to the Company with respect to
the Holders expressly for use in a preliminary prospectus, registration
statement or prospectus, or amendment or supplement thereof, or in any
application, as the case may be. The Company agrees promptly to notify the
Holder 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 the
registration statement or prospectus.
4.3.2 Exercise of Warrants. Nothing contained in this Purchase
Option shall be construed as requiring the Holder(s) to exercise their Purchase
Options or Warrants prior to or after the initial filing of any registration
statement or the effectiveness thereof.
5. Adjustments.
5.1 Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of shares of Common Stock and Warrants issuable
upon exercise of this Purchase Option shall be subject to adjustment from time
to time as hereinafter set forth:
5.1.1 Stock Dividends - Split-Ups. If after the date hereof,
and subject to the provisions of Section 5.2 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in shares of
Common Stock or by a split-up of shares of Common Stock or other similar event,
then, on the effective date of such stock dividend or split-up, the number of
shares of Common Stock issuable on exercise of each Purchase Option shall be
increased in proportion to such increase in outstanding shares.
5.1.2 Aggregation of Shares. If after the date hereof, and
subject to the provisions of Section 5.2, the number of outstanding shares of
Common Stock is decreased by a consolidation, combination or reclassification of
shares of Common Stock or other similar event, then, upon the effective date of
such consolidation, combination or reclassification, the number of shares of
Common Stock issuable on exercise of each Purchase Option shall be decreased in
proportion to such decrease in outstanding shares.
5.1.3 Adjustments in Number of Warrants. The number of shares
of Common Stock purchasable upon exercise of the Warrants issuable upon exercise
of this Purchase Option shall be adjusted (as will the exercise price of such
Warrants) in accordance with the terms of the Warrants, as if such Warrants were
outstanding on the date hereof.
5.1.4 Adjustments in Exercise Price. Whenever the number of
shares of Common Stock purchasable upon the exercise of this Purchase Option is
adjusted, as provided in this Section 5.1, the Exercise Price shall be adjusted
(to the nearest cent) by multiplying such Exercise Price immediately prior to
such adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of this Purchase Option
immediately prior to such adjustment, and (y) the denominator of which shall be
the number of shares of Common Stock so purchasable immediately thereafter.
5.1.5 Replacement of Securities Upon Reorganization, etc.
If after the date hereof any capital reorganization or reclassification of the
Common Stock of the Company, or
5
<PAGE>
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to another corporation or other similar
event shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and fair provision shall
be made whereby the Holders shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in this
Purchase Option and in lieu of the Securities immediately theretofore
purchasable and receivable upon the exercise of this Purchase Option, such
shares of stock, securities, or assets as may be issued or payable with respect
to or in exchange for the number of Securities immediately theretofore
purchasable and receivable upon the exercise of this Purchase Option, had such
reorganization, reclassification, consolidation, merger or sale not taken place.
In such event, appropriate provision shall be made with respect to the rights
and interests of the Holders so that the provisions hereof (including, without
limitation, provisions for adjustments of the Exercise Price and of the number
of securities purchasable upon the exercise of this Purchase Option) shall
thereafter be applicable, as nearly as may be in relation to any share of stock,
securities, or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such reorganization, reclassification,
consolidation, merger or sale unless, prior to the consummation thereof, the
successor corporation (if other than the Company) resulting from such
transaction shall assume by written instrument executed and delivered to the
Holders the obligation to deliver such shares of stock, securities or assets.
5.2 Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of Common Stock or
Warrants upon the exercise or transfer of the Purchase Option, nor shall it be
required to issue scrip or pay cash in lieu of any fractional interests, it
being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up to the nearest whole number of Warrants,
shares of Common Stock or other securities, properties or rights at no
additional cost to the Holder.
6. Reservation and Listing. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of the Purchase Options, Units or Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Purchase Options and payment of the Exercise Price
therefor, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable and not
subject to preemptive rights of any stockholder. The Company further covenants
and agrees that upon exercise of the Warrants underlying the Units included in
this Purchase Option and payment of the exercise price therefor, all shares of
Common Stock and other securities issuable upon such exercise shall be duly and
validly issued, fully paid and non-assessable and not subject to preemptive
rights of any stockholder. As long as the Purchase Options shall be outstanding,
the Company shall use its best efforts to cause the Common Stock issuable upon
exercise of the Purchase Options and Warrants to be listed (subject to official
notice of issuance) on all securities exchanges (or, if applicable on Nasdaq) on
which the Common Stock is then listed and/or quoted for a period of seven years
from the Closing Date.
7. Certain Notice Requirements.
7.1 Holder's Right to Receive Notice. Nothing herein shall be construed
as conferring upon the Holders the right to vote or consent or to receive notice
as a stockholder for the election of directors or any other matter, or as having
any rights whatsoever as a stockholder
6
<PAGE>
of the Company. If, however, at any time prior to the expiration of the Purchase
Options and their exercise, any of the events described in Section 7.2 shall
occur, then, in one or more of said events, the Company shall give written
notice of such event at least fifteen days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, conversion or exchange of
securities or subscription rights, or entitled to vote on such proposed
dissolution, liquidation, winding up, consolidation, merger, reorganization or
sale. Such notice shall specify such record date or the date of the closing of
the transfer books, as the case may be.
7.2 Events Requiring Notice. The Company shall be required to give the
notice described in this Section 8 upon one or more of the following events: (i)
if the Company shall take a record of the holders of its shares of Common Stock
for the purpose of entitling them to receive a dividend or distribution, or (ii)
the Company shall offer to all the holders of its Common Stock any additional
shares of capital stock of the Company or securities convertible into or
exchangeable for shares of capital stock of the Company, or any option, right or
warrant to subscribe therefor, or (iii) a dissolution, liquidation, winding up,
consolidation, merger or reorganization of the Company or a sale of all or
substantially all of its property, assets and business shall be proposed.
7.3 Notice of Change in Exercise Price. The Company shall, promptly
after an event requiring a change in the Exercise Price pursuant to Section 6.1
hereof, send notice to the Holders of such event and change ("Price Notice").
The Price Notice shall describe the event causing the change and the method of
calculating same and shall be certified as being true and accurate by the
Company's President and Chief Financial Officer.
7.4 Transmittal of Notices. All notices, requests, consents and other
communications under this Purchase Option shall be in writing and shall be
deemed to have been duly made on the date of delivery if delivered personally or
sent by overnight courier, with acknowledgment of receipt to the party to which
notice is given, or on the fifth day after mailing if mailed to the party to
whom notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as follows: (i) if to the
registered Holder of the Purchase Option, to the address of such Holder as shown
on the books of the Company, or (ii) if to the Company, to its principal
executive office.
8. Miscellaneous.
8.1 Amendments. The Company and MHM may from time to time supplement or
amend this Purchase Option without the approval of any of the Holders in order
to cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and MHM may deem necessary or desirable. All other
modifications or amendments shall require the written consent of the party
against whom enforcement of the modification or amendment is sought.
8.2 Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Purchase Option.
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8.3 Entire Agreement. This Purchase Option constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
8.4 Binding Effect. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Purchase Option or any provisions
herein contained. Without limiting the foregoing, the registration rights set
forth in this Purchase Option shall inure to the benefit of the Holders and all
the Holder's successors, heirs, pledgees, assignees, transferees and purchasers
of this Purchase Option or the Registrable Securities.
8.5 Governing Law; Submission to Jurisdiction. This Purchase Option
shall be governed by and construed and enforced in accordance with the laws of
the State of New York, without giving effect to conflict of laws. The Company
hereby agrees that any action, proceeding or claim against it arising out of, or
relating in any way to this Purchase Option shall be brought and enforced in the
courts of the State of New York or of the United States of America for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
8 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim. The Company agrees
that the prevailing party(ies) in any such action shall be entitled to recover
from the other party(ies) all of its reasonable attor neys' fees and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
8.6 Waiver, Etc. The failure of the Company or the Holder to at any
time enforce any of the provisions of this Purchase Option shall not be deemed
or construed to be a waiver of any such provision, nor to in any way affect the
validity of this Purchase Option or any provision hereof or the right of the
Company or any Holder to thereafter enforce each and every provision of this
Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of
any of the provisions of this Purchase Option shall be effective unless set
forth in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of
any other or subsequent breach, non-compliance or non-fulfillment. The issuance
of any Extra Warrants is not intended to be liquidated damages, and the Holder
has the right to seek damages or other remedies at law or equity for the breach
by the Company of any of its obligations under this Purchase Option without
limitation.
8.7 Execution in Counterparts. This Purchase Option may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement, and shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
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<PAGE>
8.8 Exchange Agreement. As a condition of the Holder's receipt and
acceptance of this Purchase Option, Holder agrees that, at any time prior to the
complete exercise of this Purchase Option by Holder, if the Company and MHM
enter into an agreement ("Exchange Agreement") pursuant to which they agree that
all outstanding Purchase Options issued in connection with the Private Placement
will be exchanged for securities or cash or a combination of both, then Holder
shall agree to such exchange and become a party to the Exchange Agreement.
IN WITNESS WHEREOF, the Company has caused this Purchase
Option to be signed by its duly authorized officer as of October 20, 1997.
GLOBALINK, INC.
By:/s/ Harry E. Hagerty Jr.
----------------------------
Harry E. Hagerty, Jr.
Chief Executive Officer
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Form to be used to exercise Purchase Option:
Globalink, Inc.
9302 Lee Highway
Fairfax, Virginia 22031
Attn.: Harry E. Hagerty, Jr.
Date:_________________, 19__
The undersigned hereby elects irrevocably to exercise the
within Purchase Option and to purchase ____ Units of Globalink, Inc. and hereby
makes payment of $____________ (at the rate of $_________ per Unit) in payment
of the Exercise Price pursuant thereto. Please issue the Common Stock and
Warrants comprising the Units as to which this Purchase Option is exercised in
accordance with the instructions given below.
or
The undersigned hereby elects irrevocably to exercise the
within Purchase Option and to purchase _________ Units of Globalink, Inc. by
surrender of the unexercised portion of the within Purchase Option (with a
"Value" of $__________ based on a "Market Price" of $___________). Please issue
the Common Stock and Warrants comprising the Units in accordance with the
instructions given below.
-------------------------
Signature
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Purchase Option in every particular
without alteration or enlargement or any change whatsoever.
Please issue securities as follows: Name:___________________________
Address:________________________
________________________________
I.D.#:__________________________
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Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Purchase Option):
FOR VALUE RECEIVED, ____________________________________ does hereby
sell, assign and transfer unto ______________________________ the right to
purchase ___________________________ Units of Globalink, Inc. ("Company")
evidenced by the within Purchase Option and does hereby authorize the Company to
transfer such right on the books of the Company.
Dated: _______________, 19___
-----------------------
Signature
NOTICE: The signature to this form must correspond with the name as
written upon the face of the within Purchase Option in every particular without
alteration or enlargement or any change whatsoever.
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