EXHIBIT 10.27
DELTAPOINT, INC.
SUBSCRIPTION AGREEMENT
The undersigned (the "Purchaser") hereby applies to purchase the
amount of Convertible Subordinated Debentures (the "Notes") of DeltaPoint, Inc.,
a California corporation (the "Company"), stated below (this "Subscription").
This Subscription is made with reference to the provisions, terms and conditions
set out in the DeltaPoint, Inc. Confidential Private Offering Memorandum dated
October 15, 1996, as supplemented by the Supplement thereto dated December 23,
1996 (as so supplemented, the "Memorandum"). The minimum investment is $50,000
(50 Notes at $1,000 principal amount per Note); however, the Company reserves
the right to accept lower minimum investments. Purchaser acknowledges that this
Subscription may be accepted or rejected by the Company, in its sole discretion,
at any time pursuant hereto. If rejected, the check or funds tendered by
Purchaser will be returned without interest but without deduction.
1. Representations. The Purchaser makes the following representations, which
may be relied upon by the Company in accepting the Purchaser's application
to purchase Notes:
a. Purchaser has received and read the Memorandum and is familiar with
the terms and conditions and other information set forth therein and
herein.
b. Purchaser has had the opportunity to ask of the Company, or a person
or persons acting on its behalf, any and all relevant questions in
connection with any aspect of the Company and has received answers
which Purchaser considers to be responsive to such questions.
c. Purchaser is able to bear the economic risk of the investment
represented by the Notes.
d. Purchaser is acquiring the Notes for Purchaser's own account for the
purpose of investment and not for or with a view to the resale,
distribution, subdivision or fractionalization thereof.
e. Purchaser understands that his right to transfer the Notes, and the
securities into which the Notes are convertible, will be subject to
certain restrictions as described in the Memorandum, including
restrictions under applicable state and federal securities laws.
f. In considering this investment, Purchaser is not relying on any
representation, warranty or statement made by the Company or any of
its agents, employees, officers or representatives not contained in
the Memorandum or not otherwise specifically referenced herein or in
any document attached hereto.
2. Investor Eligibility. Offers and sales of Notes will be made to purchasers
whom the Company and Sales Agent believes (i) are "Accredited Investors"
pursuant to Section 4(2) of the Securities Act of 1933 and Regulation D
thereunder and similar provisions of applicable state law or are otherwise
deemed appropriate investors under applicable securities laws and, in
addition (ii) meet the other suitability standards, if any, as set forth in
the Memorandum. Purchaser represents and warrants that he has accurately
completed the related Investor Questionnaire, including the Confidential
Supplemental Information Statement. Purchaser understands that the
Company reserves the right, in individual cases, to waive certain of the
foregoing criteria and accept this Subscription.
3. Miscellaneous.
a. This Subscription Agreement is subject to all of the terms and
provisions of the Memorandum.
b. Purchaser may not assign any of his rights under this Subscription
Agreement without the written consent of the Company.
c. Purchaser may not cancel, terminate or revoke this Subscription
Agreement or any agreement of the Purchaser made herein.
d. This Subscription Agreement shall be construed in accordance with and
governed by the laws of the State of California.
e. This Subscription Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the Purchaser.
f. If the Purchaser is more than one person, the obligations of the
Purchaser shall be joint and several and the representations herein
contained shall be deemed to be made by and binding upon each such
person and their heirs, executors, administrators, successors and
assigns.
g. Throughout this Subscription Agreement, as the context may require,
the masculine gender includes the feminine and neuter genders.
The undersigned hereby represents that the undersigned has read this
entire Subscription Agreement and the Memorandum, understands them, and wishes
to subscribe for the amount of Notes indicated below.
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Please Complete the Following:
Purchaser: Name:_________________________________________________________
Age (if an individual):_______________________________________
Date of Formation (if an entity):_____________________________
Residence/Principal
Place of Business:____________________________________________
Telephone Number: (Business Hrs.)____________________________
(Evenings)_________________________________
Subscription:$________________ in principal amount of Notes (must be a multiple
of $1,000).
Type of Ownership:
(select one)
_____ Company (Signature of authorized officer required - include certified
corporate resolution authorizing signature)
_____ Partnership: Limited/General (Signature of all general partners
required - include a copy of the Partnership Agreement authorizing
signature)
_____ Limited Liability Company (Signature of manager required - include a
copy of authorizing resolution or provision)
_____ Trust (Signature of trustee required - include a copy of the trust
agreement)
_____ Individual Ownership (One signature required)
_____ Community Property (Two signatures required if interest is to be held
in both names)
_____ Tenants in common (Signature of both or all parties required)
_____ Joint Tenants with Right of Survivorship (Signatures of both or all
parties required)
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Documents to be Returned:
1. A check, bank draft or money order payable to the order of "DELTAPOINT
PRIVATE OFFERING ESCROW ACCOUNT" for the Subscription amount.
2. One copy of this Subscription Agreement completed, dated and signed with
the Purchaser's(s') signature(s).
Signatures:
Purchaser Xx. 0 Xxxxxxxxx Xx. 0 (If the Notes are to be held
as tenants in common, as joint tenants, or as
community property in both names)
Dated:________________________ Dated:___________________________
By:___________________________ By:______________________________
(Signature) (Signature)
Name:_________________________ Name:____________________________
(Print) (Print)
______________________________ _________________________________
Social Security or Tax I.D. No. Social Security or Tax I.D. No.
(If none, so state) (If none, so state)
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Name of Purchaser:________________________________
State of Domicile:________________________________
Amount of Investment:_____________________________
DELTAPOINT, INC.
_______________________
INVESTOR QUESTIONNAIRE
_______________________
INSTRUCTIONS: IN ORDER TO INVEST IN DELTAPOINT, INC., YOU
MUST COMPLETE THIS INVESTOR QUESTIONNAIRE BY FILLING IN THE
INFORMATION CALLED FOR, CHECKING THE APPROPRIATE BOXES, AND
SIGNING AT PAGE 2. PLEASE RETURN THE COMPLETED
QUESTIONNAIRE TO:
X.X. XXXXXX & CO., INC.
0000 XXXXX XXXX XXXXXX
XXXXXXXXX, XX 00000
ATTENTION: XXXXXX XXXXXXXXXXXX
DELTAPOINT, INC.
_______________________
INVESTOR QUESTIONNAIRE
_______________________
TO: X.X. Xxxxxx & Co., Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with the proposed purchase of Convertible Subordinated
Debentures (the "Notes") of DeltaPoint, Inc. (the "Company"), the undersigned
hereby represents as follows:
1. Representations as to Accredited Investor Status. The
undersigned has read the definition of "Accredited Investor" from Rule 501 of
Regulation D attached hereto as Exhibit A, and certifies that:
/ / The undersigned is an "Accredited Investor"; and
/ / The undersigned has completed the statement concerning such
investor's knowledge and experience in financial and business
matters included in Exhibit B hereto.
The foregoing representation is true and accurate as of the date
hereof and shall be true and accurate as of the date of Closing. If in any
respect such representation shall not be true and accurate at or prior to
Closing, the undersigned shall give immediate notice of such fact to the
President of the Company by facsimile, telex or telegram.
Very truly yours,
_______________________________________
Print Name of Purchaser
Dated: _____________, 1996 _______________________________________
Signature
_______________________________________
Print Title (if applicable)
_______________________________________
Print Name of joint purchaser or other person
whose signature is required
_______________________________________
Signature
_______________________________________
Print Title (if applicable)
2
EXHIBIT A
Rule 501. Definitions and Terms Used in Regulation D.
As used in Regulation D, the following terms have the meaning
indicated:
1. Accredited Investor. "Accredited Investor" shall mean any person
who comes within any of the following categories, or who the
issuer reasonably believes comes within any of the following
categories, at the time of the sale of the securities to that
person:
1. Any bank as defined in section 3(a)(2) of the Act or any
savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity; any broker or dealer
registered pursuant to Section 15 of the Securities Exchange
Act of 1934; any insurance company as defined in
Section 2(13) of the Act; any investment company registered
under the Investment Company Act of 1940 or a business
development company as defined in Section 2(a)(48) of that
Act; any Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958; any plan
established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state
or its political subdivisions for the benefit of its
employees, if such plan has total assets in excess of
$5,000,000; employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of
1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance
company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of
$5,000,000; or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
2. Any private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
3. Any organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or
similar business trust, or partnership, not formed for the
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specific purpose of acquiring the securities offered, with
total assets in excess of $5,000,000;
4. Any director or executive officer of DeltaPoint, Inc.;
5. Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his
purchase exceeds $1,000,000;(1)
6. Any natural person who had an individual income in excess
of $200,000 in each of 1994 and 1995 or joint income with
that person's spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the
same income level in 1996;
7. Any trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a sophisticated
person as described in Rule 506(b)(2)(ii); and
8. Any entity in which all of the equity owners are
Accredited Investors.
_______________
(1) For this purpose, "net worth" includes the fair market equity value of
homes, home furnishings and automobiles.
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EXHIBIT B
CONFIDENTIAL SUPPLEMENTAL INFORMATION STATEMENT
In order to assure compliance with applicable federal and state laws,
it is necessary to obtain the following information:
1. GENERAL INFORMATION (attach additional sheets if necessary)
1. Name:_____________________________________________________
2. Address:__________________________________________________
Business:____________________________________________
____________________________________________
____________________________________________
Residence:___________________________________________
___________________________________________
___________________________________________
3. Telephone:
Business: (_____)____________________________________
Residence:(_____)____________________________________
2. INVESTMENT REPRESENTATIONS
1. Sufficient Net Worth: The Purchaser's investment in the Notes does
not exceed 5% of such Purchaser's net worth, excluding home, home
furnishings and automobiles.
2. Sufficient Knowledge & Experience: The Purchaser has sufficient
knowledge and experience in investing in companies similar to the
Company in terms of the Company's stage of development so as to be
able to evaluate the risks and merits of the investment in the
Company and the Purchaser is able financially to bear the
investment risks.
3. Access to Information: The Purchaser has had an opportunity to
discuss the Company's business, management and financial affairs
with the Company's management.
4. Investment for Own Account: The Purchaser is acquiring the Notes
for its own account for the purpose of investment and not with a
view to, or for sale in connection with, any distribution.
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5. Restricted Securities: The Purchaser understands that (i) the Notes
and the Common Stock of the Company issuable upon conversion of the
Notes (the "Conversion Shares") have not been registered under the
Securities Act because they are being issued in a transaction exempt
from the registration requirements of the Securities Act pursuant to
Section 4(2) thereof or Rule 505 or 506 promulgated under the
Securities Act, (ii) the Notes and the Conversion Shares must be held
indefinitely unless a subsequent disposition thereof is registered
under the Securities Act or is exempt from such registration (and
accordingly, the Purchaser should be prepared to bear the economic
risk of an investment in the Notes and the Conversion Shares for an
indefinite period), (iii) the Notes and the Conversion Shares will
bear a legend to such effect, and (iv) the Company will make a
notation on its transfer books to such effect.
I confirm that the foregoing statements are complete and accurate to the best of
my knowledge and belief, and that I undertake to notify DeltaPoint, Inc.
promptly regarding any material change in the information set forth above prior
to the closing of the purchase by me of the Notes of the Company.
_____________________________
Print Name of Purchaser
By:__________________________ ________________________
Signature Date
_____________________________
Print Title
______________________________
Print Name of joint purchaser or other person whose
signature is required
By:___________________________ _________________________
Signature Date
______________________________
Print Title (if applicable)
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