EXHIBIT 10.1
SUBSCRIPTION AGENT AGREEMENT
THIS AGREEMENT is entered into as of April 21, 2003 by and
between Navidec, Inc., a Colorado corporation (the "Company"), and Computershare
Trust Company, Inc. (the "Subscription Agent")
WHEREAS, the company intends to distribute (the "Rights Offering")
to each stockholder that owned shares of the Company's common stock, no par
value (the "Common Shares") at the close of business on November 15, 2002,
rights to purchase one Common Share for each Right held, plus additional Common
Shares pursuant to the "Over-Subscription Privilege" as defined below (the
Rights having been subdivided along with the Common Shares as part of the
reverse split effective December 5, 2002); and
WHEREAS, the Company desires the Subscription Agent to act on the
Company's behalf, and the Subscription Agent is willing so to act, in connection
with the issuance and distribution of the Rights, collection of funds from
Rights holders exercising Rights, and issuance and delivery of Common Shares
upon the exercise of the Rights.
NOW THEREFORE, in consideration of the promises and mutual covenants
set forth herein, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have
the following meanings:
(a) "Basic Subscription Privilege" means the right of
Eligible Rights Holders to subscribe for and purchase Common Shares
through the exercise of Rights at the rate of one Common Share for
each Right held.
(b) "Eligible Rights Holders" means (i) all Company
stockholders that own Common Shares at the close of business on
November 15, 2002; and (ii) holders of Series I 5% Convertible
Debentures as of November 15, 2002, who convert their Debentures to
Common Shares on or before the Expiration Time and after issuance of
the Rights any transferee thereof before the Expiration Time.
(c) "Expiration Time" means 5:00 p.m., Mountain Daylight
Savings Time on May 22, 2003, 2003, or on such other date as the
Company may determine, not to be later than June 21, 2003.
(d) "Offering Period" means the period commencing on
April 22, 2003, and ending at the Expiration Time.
(e) "Over-Subscription Privilege" means the right to
subscribe for and purchase additional Common Shares not purchased by
other stockholders, provided that and Eligible Rights Holder may
exercise the over-Subscription privilege only if the Eligible Rights
Holder exercises the Basic Subscription privilege in full.
(f) "Prospectus" means the Company's prospectus dated
April 22, 2003, pertaining to the Rights Offering including the
documents incorporated by reference there in, as the same may from
time to time be supplemented or amended.
(g) "Rights" means the subscription rights distributed
by the Company in an amount equal to one Right for each one Common
Shares owned, each of which entitles Eligible Rights Holders to
subscribe for and purchase one Common Share for each Right held, at
a Subscription price of $1.80 per share (post reverse split).
(h) "Subscription Certificate" means the certificate
evidencing the Rights.
(i) "Subscription price" means $1.80 per share.
2. FORM OF SUBSCRIPTION CERTIFICATES. The Subscription Certificates
shall be substantially in the form attached as Exhibit A hereto. Each
Subscription Certificate shall be signed by duly authorized officers of the
Company, dated the date of issue (whether upon original issuance or in lieu of
transferred, exchanged, mutilated, destroyed, lost or stolen Subscription
Certificates) and countersigned by me Subscription Agent.
3. ISSUANCE OF SUBSCRIPTION CERTIFICATES. The Subscription Agent
shall issue and deliver (by first class United States mail, postage prepaid) to
each Eligible Rights Holder a Subscription Certificate evidencing such holder's
Rights. Each Eligible Rights Holder shall receive one Right for each one Common
Share held. No Subscription Certificates shall be issued before or after the
Offering Period. All Subscription Certificates surrendered to the Subscription
Agent upon exercise shall be canceled by the Subscription Agent and thereafter
shall be retained by the Subscription Agent to a period of not less than six
years or such shorter period of time as the Company may permit. Upon expiration
of the retention period, the canceled Subscription Certificates shall be
delivered to the Company or destroyed by the Subscription Agent, as directed by
the Company.
4. DELIVERY OF PROSPECTUS AND OTHER DOCUMENTS. The Subscription
Agent shall deliver to each Eligible Rights Holder, along with the originally
issued Subscription Certificates (i) a letter from the President and Chief
Executive Officer of the Company to all Eligible Rights Holders, (ii) a
Prospectus, (iii) Instructions as to Use of the Subscription Certificates, (iv)
a return envelope addressed to the Subscription Agent, and (v) such other
documents and information as the Company may provide. The Subscription Agent
shall also provide copies of the Prospectus and other documents prepared by the
Company to Eligible Rights Holders, and other persons upon request.
(a) The Company will provide the Subscription Agent with
a sufficient number of Prospectuses as the Subscription Agent may
require.
(b) The Subscription Agent shall provide a sufficient
number of Subscription Certificates as required to distribute to
Eligible Rights Holders and to replace lost, destroyed, mutilated or
stolen Subscription Certificates.
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(c) The Company shall provide to the Subscription Agent
the following documents that the Subscription Agent shall deliver to
brokers, dealers, commercial banks, trust companies and other
nominee holders of Subscription Certificates: (i) a letter to
Brokers, Dealers, Commercial Banks, Trust Companies and Nominees;
(ii) a letter to the clients of nominee holders described in clause
(i); and (iii) a Notice of Guaranteed Delivery.
5. EXERCISE. Rights may be exercised at any time during the Offering
period Upon the terms and conditions set forth in the Prospectus and in this
Agreement.
(a) An Eligible Rights Holder may exercise its Basic
Subscription Privileges and, if desired, Over-Subscription
Privileges by completing and executing the exercise portion of the
Subscription Certificate and delivering it to the Subscription Agent
along with payment of the Subscription Price for at least the Basic
Subscription for the aggregate number of Common Shares subscribed
for prior to the Expiration Time. An Eligible Rights Holder must
exercise such holder's Basic Subscription Privilege in full in order
to be eligible to exercise its Over-Subscription Privilege. If an
Eligible Rights Holder exercises its Basic Subscription Privilege in
full, the holder may exercise its Over-Subscription Privilege for as
many Common Shares as such Eligible Rights Holder indicates on its
Subscription Certificate and for which the holder submits payment of
the Subscription Price, subject to the availability of such shares
and allocation set forth in Section 5(b).
(b) The Company will issue a maximum of 788,692 Common
Shares in the Rights Offering. The number of Common Shares available
for Over-Subscription Privileges will be 788,692 minus the number of
Common Shares purchased upon exercise of the Basic Subscription
Privileges. Provided that a sufficient number of Common Shares are
available, the Subscription Agent shall honor exercises of the
Over-Subscription Privileges in full. If exercises of the
Over-Subscription Privileges exceed the number of Common Shares
available, the Subscription Agent shall allocate the available
shares among the Eligible Rights Holders that over-subscribed in
proportion to the number of Common Shares subscribed for those
over-subscribing Eligible Rights Holders through the Over-
Subscription Privileges. However, if an Eligible Rights Holder's pro
rata allocation exceeds the number of Common Shares the Eligible
Rights Holder requested, the Eligible Rights Holder will receive
only the number of Common Shares the Eligible Rights Holder
requested, and the remaining shares from the Eligible Rights
Holder's pro rata allocation will be divided among other Eligible
Rights holders exercising their Over-Subscription Privileges that
have subscribed for additional Common Shares in proportion to the
number of shares subscribed for by that group of over-subscribing
Eligible Rights Holders through the Over-Subscription Privilege.
(c) The Subscription Agent shall accept any subscription
if, prior to the Expiration Time, the Subscription Agent has
received (i) payment of the full Basic Subscription Price for the
Common Shares subscribed for, and (ii) a Notice of Guaranteed
Delivery by facsimile (telecopy) or otherwise from a member firm of
a registered national securities exchange or a member of the
National Association of Securities Dealers, Inc., or a commercial
bank or trust company having an office or
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correspondent in the united State, guaranteeing delivery of a
properly completed and executed Subscription certificate; provided,
however, that the Subscription Agent shall not honor a Notice of
Guaranteed Delivery unless a properly completed and executed
Subscription Certificate is received by the Subscription Agent by
the close of business on the third over-the-counter trading day
after the Expiration Time.
(d) The Subscription Price shall be paid in United
States dollars, by (i) check or draft drawn on a United States bank,
or a postal, telegraphic or express money order payable to the
Subscription Agent, or (ii) by wire transfer of same day funds to an
account maintained by Subscription Agent for the purpose of
accepting subscriptions, in accordance with the following wire
instructions:
KeyBank
000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
ABA#000000000
Credit Account #85-02961
Account Name: Computershare Trust Company, Inc.
Warrant Escrow Account
(e) Payment will be deemed to have been received by the
Subscription Agent only upon:
(i) clearance of any uncertified check; or
(ii) receipt by the Subscription Agent of any
certified check or bank draft drawn upon a U.S. bank or of any
postal, telegraphic or express money order; or
(iii) receipt by the Subscription Agent of any
funds transferred by wire transfer; or
(iv) receipt of funds by the Subscription Agent
through an alternative payment method approved by the Company;
(v) notice by the Company to the Subscription
Agent of any alternative payment method approved by the
Company;
(f) Once an Eligible Rights Holder has exercised Rights,
such exercise may not be revoked or rescinded.
(g) If an Eligible Rights Holder exercises fewer than
all of the Rights evidenced by the Eligible Rights Holder's
Subscription Certificate and requests in writing that the
Subscription Agent issue a Subscription Certificate evidencing the
unexercised Rights, the Subscription Agent shall immediately issue
to such holder a new
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Subscription Certificate evidencing the unexercised Rights and
deliver it to the Eligible Rights Holder at the address shown on
such Subscription Certificate.
(h) If an Eligible Rights Holder does not specify the
number of Rights being exercised on the Subscription Certificate, or
if payment is not sufficient to pay the total purchase price for all
of the Common Shares that the Eligible Rights Holder indicated that
the holder wished to purchase, such holder will be deemed to have
exercised the maximum number of Rights that could be exercised for
the amount of the payment received by the Subscription Agent. If
payment exceeds the total purchase price for all of the Rights shown
on the Subscription certificate, payment will be applied, until
depleted, to subscribe for Common Shares in the following order:
(i) to subscribe for the number of Common Shares,
if any, that the Eligible Rights Holder indicated on the
Subscription Certificate that such holder wished to purchase
through the Basic Subscription Privilege;
(ii) to subscribe for Common Shares until the
Basic Subscription Privilege has been fully exercised;
(iii) to subscribe for additional Common Shares
pursuant to the Over-Subscription Privilege, but subject to
any applicable proration.
Any excess payment remaining after the foregoing allocation
will be returned to the eligible Rights Holder as soon as
practicable by mail, without deduction.
6. POWER OF ATTORNEY. The Company hereby constitutes and appoints
the Subscription Agent as the Company's true and lawful attorney in-fact, with
full power in such capacity to endorse, deposit, negotiate, and invest on behalf
and for the account of the Company, in accordance with the written instructions
provided by the Company, checks, drafts, money orders, wire transfer or other
payments received by the Subscription Agent as a payment of the Subscription
Price upon the exercise of the Basic Subscription Privilege and, if desired, the
Over-Subscription Privilege.
7. ESCROW AND INVESTMENT OF FUNDS. The Subscription Agent shall:
(a) Maintain a record of the date, amount of each
payment of the Subscription Price received upon the exercise of
Rights, and the name and address of the Eligible Rights Holder by
whom or on whose behalf payment was made.
(b) Aggregate all payments received upon the exercise of
Rights and deposit such payments in the Company's account, upon
acceptance by the Company, as soon as practicable after receipt of
such payments, in accordance with the following wire instructions:
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(c) Keep all funds deposited in accounts in the name of
the Company for the benefit of the Company.
(d) Return as promptly as practicable to the Eligible
Rights Holder who made such payment, any payment of the Subscription
Price for Common Shares not accepted by the company for any reason.
8. PAYMENT OF FUNDS TO THE COMPANY. Funds representing payment of
the Subscription Price for Common Shares shall be paid to the Company by wire
transfer as described above in paragraph 7 (b). Such wire transfer of funds to
the Company shall be made promptly upon receipt and acceptance by the Company,
at which time all funds received by the Subscription Agent from Rights holders
shall be paid to the Company. The Subscription Agent shall have no
responsibility for the payment of commission to selected Broker-Dealers
representing the Company.
9. REPORTS. The Subscription Agent shall deliver daily to the
Company a written report showing (a) the number of Rights exercised on such day,
and the aggregate number of Rights exercised through such date; and (b) the
amount of funds received on such day in payment of the Subscription Price for
Common Shares, and the aggregate amount of funds transferred to the Company, on
deposit or invested for the account of the Company from payment of the
Subscription Price for Common Shares through such date. The Subscription Agent
shall also report on the Number of Rights subscribed as a result of a
Broker-Dealer solicitation as reported on the form of subscription.
10. ISSUANCE OF COMMON SHARES. As soon as practicable after the
Expiration Time, the Subscription Agent, as Transfer Agent and Registrar for the
Common Shares, shall issue and deliver to each Eligible Rights Holder exercising
Rights a stock certificate evidencing the aggregate of the number of Common
Shares purchased by exercise of the basic Subscription Privilege and, if
applicable, the Over-Subscription Privilege. No certificate will be delivered
for any subscribed but unpaid Over-Subscription Privilege until paid in full
with immediately available funds.
11. VALIDITY AND FORM OF SUBSCRIPTIONS. All questions concerning the
timeliness, validity, form, and eligibility of any exercise of Rights shall be
determined by the Company, whose determination shall be final and binding. The
Subscription Agent shall examine the Subscription Certificates it received to
ascertain whether they appear to have been completed and executed in accordance
with the prospectus and the instructions for exercise. In the event that the
Subscription Agent determines that the Subscription Certificate does not appear
to have been properly completed or executed or where the Subscription
Certificates do not appear to be in proper form for subscription, or any other
irregularity in connection with the subscription appears to exist, the
Subscription Agent shall follow its regular procedures to attempt to cause such
irregularity to be corrected. The Subscription Agent shall promptly notify the
Company in writing of all defects in the exercise of any Rights that the
Subscription Agent is unable to cure through its regular procedures. The
Subscription Agent is not authorized to waive any irregularity in connection
with any subscription, unless it has received from the Company
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notification, duly dated and signed by an authorized officer of the Company,
indicating that any irregularity in such subscription has been cured or waived
and that such subscription has been accepted by the Company. Subscription
Certificates and funds received by the Subscription Agent that are not properly
executed or submitted, and as to which all irregularities have not been timely
waived or cured, shall be returned by the Subscription Agent to the Eligible
Rights Holder who submitted such Subscription Certificate and/or payment. Such
return shall be made by either first class mail under a blanket surety bond or
insurance protecting the Subscription Agent and the Company from losses or
liabilities arising out of the non-receipt or nondelivery of such Subscription
Certificates and funds or by registered mail insured separately for the value of
such Subscription Certificates and funds, and if determined to be required by
the Company, shall include a letter of notice to be furnished by the Company
explaining the reason for the return of the Subscription Certificates, funds,
and other documents.
12. AMENDMENT, Extension or Termination of the Rights Offer. The
Company reserves the right in its sole discretion, to (a) terminate Rights
Offering prior to delivery of the Common Shares for which Eligible Rights
Holders have subscribed pursuant to the exercise of Rights; (b) extend the
Expiration Time to a later date and time; or (c) amend or modify the terms of
the Rights. If the Company amends the terms of the Rights, an amended Prospectus
will be distributed to holders of record of Rights and to holders of Rights who
have previously exercised Rights. All holders of Rights who exercised rights
prior to such amendment or within four business days after the mailing of the
amended Prospectus will be given the opportunity to confirm the exercise of
Rights by executing and delivering a consent form.
13. LOSS OR MUTILATION. Upon receipt by the Company and the
Subscription Agent of evidence, satisfactory to the, of the ownership and loss,
theft, destruction or mutilation of any Subscription certificate , and in the
case of loss, theft or destruction, receipt of indemnity satisfactory to the
Company and the Subscription Agent, and in the case of mutilation upon surrender
and cancellation of the mutilated Subscription certificate, the Subscription
Certificate representing an equal aggregate number of Rights. Eligible Rights
Holders requesting such substitute Subscription certificates shall also company
with such other reasonable regulations, requirements or request, as the company
or the Subscription Agent may prescribe.
14. LIABILITY OF SUBSCRIPTION AGENT. The Subscription Agent shall
not, by issuing and delivering Subscription Certificates or stock certificates
evidencing Common Shares, or receiving or holding funds for the benefit of the
Company, or by any other act under this Agreement, be deemed to make any
representations as to the validity or value or authorization of the Subscription
certificates or the Rights represented thereby or the Common Shares issued upon
the exercise of Rights, or whether the Common Shares issued upon the exercise of
Rights are fully paid and nonaccessable. The Subscription Agent shall not be (a)
liable for any statement of fact, other than any statement of fact made by or on
behalf of Subscription Agent, made or contained in this Agreement or in the
Prospectus or in any documents prepared by the Company in connection with the
offer of Common Shares through the Rights, (b) liable for any action taken,
suffered, or omitted by it in reliance upon any Subscription Certificate or
other document or instrument believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties, (c) responsible
for any failure on the part of the Company to comply with any of its covenants
and obligations contained in this Agreement or in the Subscription Certificates,
or (d) liable for any act or omission in connection with the
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performance of its duties, obligations, covenants and agreements under this
Agreement, except for the Subscription Agent's own negligence, willful breach or
misconduct.
15. INDEMNIFICATION. The Company agrees to indemnify and hold
harmless the Subscription Agent from and against any and all losses, expensed,
and liabilities, including judgments, costs, and reasonable attorneys' fees,
arising out of any act or omission of the Subscription Agent in the execution or
performance of its duties, obligations, covenants, and agreements under this
Agreement, except for the Subscription Agent's own negligence, willful breach or
misconduct.
16. COMPENSATION FOR SERVICES. The Company agrees to pay the
Subscription Agent Pursuant to the terms in the proposal provided to the Company
by the Subscription Agent as set forth on Exhibit B attached hereto.
17. AMENDMENT; MODIFICATION; WAIVER. This Agreement may be amended,
waived, discharged, or terminated in whole or in part only by a written
instrument signed by the party against whom enforcement of such amendment,
waiver, discharge, or termination is sought. Notwithstanding the immediately
preceding sentence, the parties shall supplement or amend this Agreement to
conform to any amendments or changes that the company may make to the terms and
conditions of the Rights and the offer of the Common Shares through the Rights.
18. NOTICES. All notices, requests demands an other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received (i) when delivered against
receipt; (ii) upon delivery by an overnight courier service or facsimile with
confirmation of receipt; or (iii) upon actual receipt of registered or certified
mail, postage prepaid, return receipt requested, addressed as set forth below:
(a) If to the Company:
Navidec, Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000 (tel)
(000) 000-0000 (fax)
Attention: Chief Executive Officer
(b) If to the Subscription Agent:
Computershare Trust Company, Inc.
XX Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
(000) 000-0000 xxx 0000 (tel)
(000) 000-0000 (fax)
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Any party may alter the address to which communications or
copies are to be sent by giving notice of such change of address in
conformity with the provisions of the paragraph for the giving of
notice.
19. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to any party to this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power, or remedy; nor shall it be construed to be a waiver of, or an
acquiescence in any such breach or default or any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character, on
the part of any party, of any breach or default under this Agreement, or any
waiver, on the part of any party, of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extend
specifically set forth in such writing. All remedies, either under this
Agreement or by law and otherwise afford to any party, shall be cumulative and
not alternative.
20. PROVISIONS SEPARABLE. The provisions of this Agreement are
independent and separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any reason or
any other or others of them may be invalid or unenforceable in whole or in part.
21. GENDER. Whenever appropriate in this Agreement, terms in the
singular form shall include the plural (and vice versa) and any gender form
shall include all others.
22. SECTION HEADINGS. Section headings are for the convenience of
the parties and do not form a part of this Agreement
23. BINDING EFFECT; PARTIES. This Agreement shall be binding on the
Company, the Subscription Agent, and their respective successors and assigns;
and nothing in this Agreement shall confer upon any other person or entity any
right, remedy, or claim, or impose upon any other person and duty, liability, or
obligation.
24. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any facsimile, photographic or xerographic copy of this Agreement,
with all signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Agreement.
25. EXHIBITS AND SCHEDULES; ENTIRE AGREEMENT. All Exhibits and
Schedules referred to herein or attached hereto are hereby incorporated by
reference into, and made a part of, this Agreement. This Agreement, together
with the Exhibits and Schedules hereto, contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implies, oral or written, of any nature
whatsoever with
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respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.
26. CONTROLLING LAW. THIS AGREEMENT AND ALL QUESTIONS RELATING TO
ITS VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT, SHALL BE GOVERNED BY
AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF COLORADO, NOTWITHSTANDING ANY COLORADO OR OTHER CONFLICT OF LAW PROVISIONS TO
THE CONTRARY.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
NAVIDEC, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
________________________________
Name: Xxxxxxx Xxxxxxxxx
______________________________
Title: Chief Financial Officer
_____________________________
Computershare Trust Company, Inc.
By: /s/ Xxxxxxx Xxxxxxx
_________________________________
Name: Xxxxxxx Xxxxxxx
______________________________
Operations Manager
Title: _____________________________
Computershare Trust Company, Inc.
By: /s/ Xxx Xxxxx
________________________________
Name: Xxx Xxxxx
______________________________
Title: President
_____________________________
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