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, JUNE 10, 2003.
PURCHASE OPTION
For ______ Shares of Common Stock
of
Globalink, Inc.
(A Delaware Corporation)
Purchase Option.
THIS CERTIFIES THAT, in consideration of $______ duly paid by
or on behalf of _______________ ("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 June 11, 1998 ("Commencement Date"), and at or before
5:00 p.m., Eastern Time, June 10, 2003 ("Expiration Date"), but not thereafter,
to subscribe for, purchase and receive, in whole or in part, up to
_______________ (______) shares of Common Stock of the Company, $.01 par value
("Common Stock"). 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 $2.20 per share;
provided, however, that upon the occurrence of any of the events specified in
Section 5 hereof, the rights granted by this Purchase Option, including the
exercise price for and the number of shares of Common Stock 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 M.H. Meyerson Co., Inc. ("MHM") and its designees ("Purchase
Options") in connection with a private placement of the Company's 10%
Convertible Debentures ("Debentures") and Common Stock Purchase Warrants.
1. Exercise.
a. 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
shares of Common Stock 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.
a. Legend. Each certificate for the shares of Common Stock
purchased under this Purchase Option shall bear a legend as
follows unless they have been registered under the Securities
Act of 1933, as amended ("Securities Act"):
"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
said act or pursuant to an exemption from the registration
requirements of said act and applicable state securities laws,
supported by an opinion of counsel, reasonably satisfactory to
the Company and its counsel, that such registration is not
required."
a. Cashless Exercise.
i. Determination of Amount. In lieu of the payment of
the Exercise Price in the manner set forth in
Section 1.1, the Holder shall have the right (but
not the obligation) to convert this Purchase Option,
in whole or part, into Common Stock ("Conversion
Right") as follows: Upon exercise of the Conversion
Right, the Company shall deliver to the Registered
Holder (without payment by the Holder of any of the
Exercise Price) that number of shares of Common
Stock equal to the quotient obtained by dividing (x)
the "Value" (as defined below) of the portion of the
Purchase Option being converted on the second
trading day immediately preceding the date the
Purchase Option is delivered to the Company pursuant
to Section 1.3.2 if this Conversion Right is
exercised ("Valuation Date") by (y) the "Market
Price" (as defined below") on the Valuation Date.
The "Value" of the portion of the Purchase Option
being converted shall equal the remainder derived by subtracting (a) the
Exercise Price multiplied by the number of shares of Common Stock underlying the
portion of this Purchase Option being converted from (b) the "Market Price" of
the Common Stock multiplied by the number of shares of Common Stock underlying
the portion of this Purchase Option being converted. 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 national 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 sale price as reported
by the Nasdaq Stock Market if the Common Stock is quoted on Nasdaq National
Market or SmallCap Market. If the Common Stock is not listed on a national
securities exchange or quoted on the Nasdaq National Market or Nasdaq SmallCap
Market, but is traded in the residual over-the-market, the Market Price shall
mean the last sale price for the Common Stock, as reported by the NASD OTC
Bulletin Board if quoted on the NASD OTC Bulletin Board and, if not, the average
of the bid and asked prices as published by the National Quotation Bureau,
Incorporated, or similar publisher of such quotations. If the Market Price
cannot be determined pursuant to the above, the Market Price shall be such price
as the Board of Directors of the Company shall determine in good faith.
i. Exercise of Conversion Right. The Conversion 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 conversion section
completed.
1. Transfer.
a. General Restrictions. The 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
as set forth in Section 2.2. 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 shares of Common Stock purchasable
hereunder or such portion of such number as shall be
contemplated by any such assignment.
a. Restrictions Imposed by the Act. This Purchase Option and the
shares of Common Stock underlying this Purchase Option shall
not be transferred in the absence of (a) an effective
registration statement under the Act as to this Purchase
Option or shares of Common Stock purchasable hereunder or (b)
an opinion of counsel, reasonably acceptable to the Company
(the Company hereby agreeing that the opinion of Graubard
Mollen & Miller shall be acceptable), that such registration
and qualification are not required.
1. New Purchase Options to be Issued.
a. Partial Exercise or Transfer. Subject to the restrictions in
Section 2 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 shares of Common Stock as
to which this Purchase Option has not been exercised or
assigned.
a. 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.
1. Registration Rights.
a. Obligation to Register. Upon the written demand of the holders
of at least 51% or more of the Purchase Options 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 this Purchase Option and the Common
Stock issuable upon exercise of this Purchase Option
("Registerable Securities"). 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.
a. 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 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.
a. General Terms.
i. Indemnification. The Company shall indemnify the
Holder(s) of the Registrable 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 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.
i. Exercise of Warrants. Nothing contained in this
Purchase Option shall be construed as requiring the
Holder(s) to exercise their Purchase Options prior to
or after the initial filing of any registration
statement or the effectiveness thereof.
1. Adjustments.
a. Adjustments to Exercise Price and Number of Shares. The
Exercise Price and the number of shares of Common Stock
issuable upon exercise of this Purchase Option shall be
subject to adjustment from time to time as hereinafter set
forth:
i.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 this Purchase Option shall be increased in
proportion to such increase in outstanding shares.
i. 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 this Purchase
Option shall be decreased in proportion to such
decrease in outstanding shares.
i. [omitted]
i. 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.
i. Replacement of Securities Upon Reorganization, etc.
If after the date hereof any capital reorganization
or reclassification of the Common Stock of the
Company, or 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
Holder 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 shares of Common Stock 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 shares of Common Stock 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 Holder 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.
a. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of
Common Stock 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 shares
of Common Stock or other securities, properties or rights at
no additional cost to the Holder.
1. 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, 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. 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 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 date hereof.
1. Certain Notice Requirements.
a. Holder's Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holder 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 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.
a. Events Requiring Notice. The Company shall be required to give
the notice described in this Section 7 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.
a. Notice of Change in Exercise Price. The Company shall,
promptly after an event requiring a change in the Exercise
Price pursuant to Section 5.1 hereof, send notice to the
Holder 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.
a. Transmittal of Notices. All notices and other communications
under this Purchase Option (except payment) shall be in
writing and shall be sufficiently given if sent to the Holder
or the Company, as the case may be, by hand delivery, private
overnight courier, with acknowledgment of receipt, or by
registered or certified mail, return receipt requested, as
follows: (i) if to the 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.
1. Miscellaneous.
a. 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.
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.
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.
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
Holder and all the Holder's successors, heirs,
pledgees, assignees, transferees and purchasers of
this Purchase Option or the Registrable Securities.
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 7.4 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 attorneys' fees and expenses relating
to such action or proceeding and/or incurred in
connection with the preparation therefor.
a. 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.
a. 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.
a. 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 June 11, 1998.
GLOBALINK, INC.
By:
Harry E. Hagerty, Jr.
Chief Executive Officer
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 ____ shares of Common Stock of Globalink,
Inc. and hereby makes payment of $____________ in payment of the Exercise Price
pursuant thereto. Please issue the Common Stock in accordance with the
instructions given below.
or
The undersigned hereby elects irrevocably to convert the
within Purchase Option and to purchase _________ shares of Common Stock 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 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.#:
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 ___________________________ shares of Common Stock 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.