EXHIBIT 10.20
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is entered into this
5th day of September, 2000, by and among Micrografx, Inc., a Texas corporation
(the "COMPANY") and each of the purchasers identified on Schedule 1 hereto (the
"PURCHASERS").
WITNESSETH:
WHEREAS, the Company has authorized and desires to issue and sell to the
Purchasers hereunder certain shares of the Company's Series A Convertible
Preferred Stock, par value $0.10 per share ("PREFERRED STOCK");
WHEREAS, the Purchasers desire to purchase such Preferred Stock from
the Company on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. PURCHASE AND SALE TRANSACTION.
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1.1. PURCHASE AND SALE. In reliance upon the representations and warranties of
the parties set forth herein, each Purchaser agrees to purchase from the
Company, and the Company agrees to authorize, issue and sell to each Purchaser
the number of shares of Preferred Stock (collectively, the "PREFERRED SHARES")
set forth the name of such Purchaser on Schedule 1 hereto, for the purchase
price set forth opposite the name of such Purchaser on Schedule 1 hereto.
1.2. CLOSING. The closing of the purchase and sale of the Preferred Shares
(the "CLOSING") shall take place on the date hereof at the principal executive
offices of the Company.
1.3. PAYMENT. At the Closing, each Purchaser shall pay to The Chase Manhattan
Bank as escrow agent (the "Escrow Agent"), the purchase price (the "Purchase
Price") for the Preferred Shares purchased by it by wire transfer of immediately
available funds in accordance with wire transfer instructions provided to such
Purchaser by the Company. The Escrow Agent shall release the Purchase Price to
the Company in accordance with the instructions set forth therein.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. To induce the
Purchasers to purchase the Preferred Shares purchased by it, the Company hereby
represents and warrants to each Purchaser that each of the following statements
is true and correct on the date hereof:
2.1. CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The execution,
delivery and performance of this Agreement by the Company are within its
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental
authority (other than filings with any applicable securities regulatory
authorities (i) to perfect exemptions from the registration or qualification
requirements of applicable securities laws or (ii) to comply with provisions of
the Securities Act of 1933, as amended (the "Securities Act"), or Securities
Exchange Act of 1934, as amended, which in each case will be made immediately
following the Closing), and, except for matters which have been waived in
writing by the appropriate person, do not contravene, or constitute a default
under, any provision of applicable law or of the articles of incorporation or
bylaws of the Company.
2.2. BINDING EFFECT. This Agreement constitutes the valid and binding agreement
of the Company enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors rights generally, and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.
2.3. ISSUANCE OF PREFERRED SHARES. The Preferred Shares, when issued upon
payment of the applicable purchase price in accordance with SECTION 1.3 will be
duly authorized, validly issued, fully paid and non-assessable and will be free
and clear of all liens, claims and encumbrances created by the Company,
including preemptive rights. The shares of Common Stock of the Company issuable
upon a conversion of the Preferred Shares (the "CONVERSION SHARES"), when issued
upon conversion of the Preferred Shares, will be duly authorized, validly
issued, fully paid and nonassessable and free and clear of all liens, claims and
encumbrances created by the Company, including, without limitation, all
preemptive rights.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. In order to induce
the Company to issue and sell the Preferred Shares to the Purchasers hereunder,
each Purchaser hereby severally (but not jointly) represents and warrants to the
Company, with respect to itself only, as follows:
3.1. DUE AUTHORIZATION; NO CONFLICTS. The execution, delivery and performance by
such Purchaser of this Agreement (a) are within such Purchaser's partnership
power, limited liability company power, corporate power or individual power and
(b) have been duly authorized by all necessary partnership, limited liability,
corporate or other action on the part of each Purchaser.
3.2. SECURITIES REPRESENTATIONS.
(a) NO INTENDED DISTRIBUTION. Each Purchaser is acquiring the
Preferred Shares to be purchased by it (and, if the Preferred Shares are
converted, the Conversion Shares) for investment purposes only, for its own
account, and not as nominee or agent for any other person, and not with a view
to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act.
(b) ACCREDITED INVESTOR. Each Purchaser is an
"accredited investor" within the meaning of Rule 501 under the Securities Act.
(c) INVESTMENT EXPERIENCE. Each Purchaser has sufficient
knowledge and experience in investing in companies similar to the Company so as
to be able to evaluate the risks and merits of its investment in the Company,
and each Purchaser is able financially to bear the risks thereof.
(d) DISCLOSURE OF INFORMATION. Each Purchaser has received or
has had full access to all the information it considers necessary or appropriate
to make an informed investment decision with respect to the Preferred Shares to
be purchased by such Purchaser under this Agreement. Such Purchaser further has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Preferred Shares and
to obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Purchaser or to which such
Purchaser had access.
3.3 RESTRICTED SECURITIES. Each Purchaser understands that (i) the
Preferred Shares are characterized as "restricted securities" under the
Securities Act in as much as they are being acquired from the Company in a
transaction not involving a public offering and that (ii) under the Securities
Act and applicable regulations thereunder, such securities (or securities issued
upon conversion thereof) may be resold without registration under the Securities
Act only in certain limited circumstances. In this connection, such Purchaser
represents that such Purchaser is familiar with Rule 144, as amended,
promulgated by the Securities and Exchange Commission ("SEC") under the
Securities Act ("Rule 144"), and understands the resale limitations imposed
thereby and by the Securities Act. Such Purchaser understands that the Company
is under no obligation to register any of the securities sold hereunder.
(a) FURTHER LIMITATIONS ON DISPOSITION. Without in any way
limiting the representations set forth above, such Purchaser further agrees not
to make any disposition of all or any portion of the Preferred Shares or the
Conversion Shares unless and until:
(i) there is then in effect a registration statement
under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii)(A) such Purchaser shall have notified the
Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed
disposition, and (B) such Purchaser shall have furnished the Company,
with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such securities
under the Securities Act.
(b) LEGEND. It is understood that the certificates
evidencing the Preferred Shares and the Conversion Shares will bear the legend
set forth below:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
The legend set forth above shall be removed by the Company from any
certificate evidencing Preferred Shares or Conversion Shares upon
delivery to the Company of an opinion by counsel, reasonably
satisfactory to the Company, that a registration statement under the
Securities Act is at that time in effect with respect to the legended
security or that such security can be freely transferred in a public
sale without such a registration statement being in effect and that
such transfer will not jeopardize the exemption or exemptions from
registration pursuant to which the Company issued the Preferred Shares
or Conversion Shares.
Section 4. MISCELLANEOUS.
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4.1. EXPENSES. Each party shall bear their own expenses incurred in
connection with the transactions contemplated herein.
4.2. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or otherwise
transfer any of its rights under this Agreement.
4.3. TEXAS LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
4.4. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when the Purchasers and the Company shall have received
counterparts hereof signed by all of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers on the date first above
written.
COMPANY:
MICROGRAFX, INC.
By: /S/ XXXX X. XXXXXXXXX
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Its: CHIEF FINANCIAL OFFICER
PURCHASERS:
XXXXXX PARTNERS, L.P.
By: /S/XXXXXX XXXXXX
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Its: GENERAL PARTNER
GIRWOOD FINANCE CORPORATION LIMITED
By: /S/XXXXX GONLAW
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Its: DIRECTOR
X.X. XXXXXXX AND X.X. XXXXXXX XX WROS
By: /S/X.X. XXXXXXX AND /S/X.X. XXXXXXX
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OCEAN FUND
By: /S/XXXXX XXXXX
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Its: GENERAL MANAGER
By: /S/XXXXXX XXXXXXXXXX
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By: /S/XXXXX XXXXX
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By: /S/XXXXXXX X. VAN PIGGELEN
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