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Exhibit 10l
STOCK PURCHASE
AND
REGISTRATION RIGHTS AGREEMENT
THIS STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT ("Agreement") is
entered into on September 19, 1995 between Digicon Inc., a Delaware corporation
(the "Company"), and the purchasers listed on Schedule A attached hereto
(collectively and individually hereinafter referred to as the "Purchaser").
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"COMMON STOCK" means the Common Stock, par value $.01 per share, of the
Company.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"DEMAND NOTICE" means a notice by the Purchaser pursuant to Section
3.1 demanding that the Company register the Purchaser's Registrable Securities
for sale under the Securities Act.
"DEMAND REGISTRATION" means the Shelf Registration which the Company
is required to effect on behalf of the Purchaser pursuant to Section 3.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"NOTICE OF REGISTRATION" means a notice by the Company to the
Purchaser that the Company has determined to conduct an Underwritten Public
Offering or Shelf Registration.
"PIGGYBACK REGISTRATION" means a registration of shares of Registrable
Securities owned by the Purchaser under the terms and conditions set forth in
Section 3.3.
"REGISTRABLE SECURITIES" means the 400,000 shares of Common Stock
purchased by the Purchaser hereunder.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"SHARES" means the 400,000 shares of Common Stock being sold by the
Company to the Purchaser hereunder.
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"SHELF REGISTRATION" means a registration meeting the requirements of
Rule 415 under the Securities Act or any similar rule in effect under the
Securities Act.
"UNDERWRITTEN PUBLIC OFFERING" means a public offering (including a
Shelf Registration) of Common Stock for cash which is offered and sold in a
registered transaction on a firm commitment underwritten basis through one or
more underwriters, pursuant to an underwriting agreement between the Company
and such underwriters.
ARTICLE II
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Upon the terms and subject to the
conditions set forth in this Agreement, the Company agrees to sell and deliver
the Shares to the Purchaser, and the Purchaser agrees to purchase the Shares
from the Company.
2.2 PURCHASE PRICE. As consideration for the sale of the Shares,
on the date hereof the Purchaser shall pay $1,875,000.00 in U.S. Federal or
other immediately available funds to the account of the Company at Texas
Commerce Bank, ABA #000000000, (Credit: Digicon Inc., Acct. No. 00100356584)
before 5:00 p.m., Houston, Texas time, on the date hereof. Upon receipt of
such purchase price, the Company will, as soon as practicable, deliver to the
Purchaser a stock certificate representing the Shares registered in the name
of the Purchaser.
ARTICLE III
REGISTRATION RIGHTS
3.1 DEMAND REGISTRATION. (a) Beginning on the date hereof through
September 19, 1998, upon receipt by the Company of a Demand Notice from the
Purchaser requesting registration of all or part of the Registrable Securities,
the Company agrees to use its best efforts to effect, as soon as practicable,
all registrations, qualifications and compliances (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualifications under the applicable blue sky or other state
securities laws and appropriate compliance with exemptive regulations issued
under the Securities Act and any other governmental requirements or
regulations) as would permit or facilitate the sale and distribution of the
Registrable Securities under the Securities Act; provided that the Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 3.1 in any jurisdiction in
which the Company would be required to execute a general consent to service of
process or to register as a dealer or to cause any officer or employee of the
Company to register as a salesman in effecting such registration, qualification
or compliance. The Company shall use its best efforts to prepare and file a
registration statement on Form S-3 or any successor Form thereto covering the
Registrable Securities so requested to be registered pursuant to this Section
3.1 within 30 days after such request is received and to keep such registration
statement effective under the Securities Act until the first to occur of (i)
the expiration of three
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years from the date of effectiveness of such registration statement or (ii) the
date upon which the Purchaser has sold all such Registrable Securities.
3.2 LIMITATIONS ON DEMAND REGISTRATION RIGHTS. The Purchaser may
make only one request for a Demand Registration hereunder. The Company shall
be obligated only to effect a Shelf Registration on behalf of the Purchaser in
connection with a Demand Registration, and the Company shall not be obligated
to execute any underwriting agreement with respect to the sale of the
Registrable Securities in connection with a Demand Registration.
3.3 PIGGYBACK REGISTRATION. If at any time or from time to time
after the date hereof the Company shall determine to make an Underwritten
Public Offering or Shelf Registration for its own account (but not including an
offering that is registered on Commission Forms X-0, X-0 or any successor forms
thereto), then the Company will:
(a) promptly give to the Purchaser a Notice of
Registration; and
(b) use its best efforts to include in such registration
(and any related qualification or compliance under blue sky laws), and
in any Underwritten Public Offering or Shelf Offering involved
therein, all the Registrable Securities specified in any written
request or requests by the Purchaser received by the Company within 10
days after such Notice of Registration is given.
3.4 LIMITATIONS ON PIGGYBACK REGISTRATIONS. (a) The Purchaser may
make a request for the inclusion of all or any portion of its Registrable
Securities in any registration effected pursuant to Section 3.3 at any time
after the date hereof through the first anniversary of the date hereof under
the procedures set forth in Section 3.3.
(b) The right of the Purchaser to participate in an
Underwritten Public Offering pursuant to Section 3.3 shall be
conditioned upon the inclusion of the Purchaser's Registrable
Securities in the Underwritten Public Offering to the extent provided
herein. The Company and the Purchaser shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such Underwritten Public Offering by the
Company, provided that Purchaser shall only be obliged to enter into
the underwriting agreement if Purchaser participates in such
Underwritten Public Offering.
(c) Notwithstanding any other provisions of Sections 3.3
or 3.4, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the
managing underwriter and the Company may limit the Registrable
Securities to be included in any Underwritten Public Offering as set
forth below. In such event, the Company shall so advise the
Purchaser, and the number of shares of Registrable Securities that
will be included in the registration and Underwritten Public Offering
shall be allocated pro rata between the Company and the Purchaser. No
Registrable Securities excluded from the Underwritten Public Offering
by reason of the managing underwriter's marketing limitation shall be
included in such registration. If the
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Purchaser disapproves of the terms of the Underwritten Public
Offering, the Purchaser may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. The Registrable
Securities so withdrawn also shall be withdrawn from registration.
3.5 TERMINATION OF REGISTRATION. Notwithstanding any other
provision of this Agreement, at any time before or after the filing of a
registration statement that is subject to Section 3.3, the Company may, in its
sole discretion, abandon or terminate an Underwritten Public Offering without
the consent of the Purchaser, and the Purchaser may, in its sole discretion,
abandon or terminate a Demand Registration without the consent of the Company.
3.6 REGISTRATION EXPENSES. All expenses of any registration under
this Agreement (including, but not limited to, any qualifications under the
Blue Sky or other state securities laws, compliance with governmental
requirements of preparing and filing any post-effective amendments required for
the lawful distribution of the Registrable Securities to the public and of
supplying prospectuses, offering circulars or other documents), will be paid by
the Company provided, however, that the Purchaser shall be responsible for the
fees and expenses of its own separate counsel, if any.
3.7 REGISTRATION PROCEDURES. The Company will at its expense:
(a) prepare and file with the Commission a registration
statement with respect to the Registrable Securities to be registered,
and, in the case of a Demand Registration or an Underwritten Public
Offering involving a Shelf Registration, use its best efforts to cause
such registration statement to become and remain effective for three
years or until the Purchaser no longer owns any of the Registrable
Securities;
(b) prepare and file with the Commission such amendments
to such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration
statement effective for the periods set forth in Section 3.7(a).
(c) furnish to the Purchaser such reasonable number of
copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as the Purchaser may reasonably
request to facilitate the public offering of the Registrable
Securities;
(d) use its diligent good faith efforts to register or
qualify the Registrable Securities covered by such registration
statement under such state securities or Blue Sky laws of such
jurisdictions as the Purchaser may reasonably request;
(e) notify counsel for the Purchaser, promptly after it
shall receive notice thereof, of the time when such registration
statement has become effective under the Securities Act or a
supplement to any prospectus forming a part of such registration
statement has been filed;
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(f) notify counsel for the Purchaser promptly of any
request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon
the request of the Purchaser, any amendments or supplements to such
registration statement or prospectus which, in the opinion of counsel
for the Purchaser (and concurred in by counsel for the Company), is
required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable
Securities;
(h) prepare and promptly file with the Commission and
promptly notify counsel for the Purchaser of the filing of such
amendment or supplement to any such registration statement or
prospectus as may be necessary to correct any statements or omissions
if, at the time when a prospectus relating to the Registrable
Securities is required to be delivered under the Securities Act, any
event shall have occurred as the result of which any such prospectus
or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(i) advise counsel for the Purchaser, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement under the Securities Act or the initiation or
threatening of any proceeding for such purpose, and promptly use its
best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued;
(j) not file any amendment or supplement to such
registration statement or prospectus if, in the opinion of counsel for
the Purchaser, such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or the
rules and regulations thereunder, after having been furnished with a
copy substantially in the form thereof at least two business days
before the filing thereof; provided, however, that if in the opinion
of counsel for the Company, the filing of such amendment or supplement
is reasonably necessary to protect the Company from any liabilities
under any applicable federal or state law and such filing will not
violate applicable law, the Company may make such filing; and
(l) list the Registrable Securities on any national
securities exchange on which the Common Stock is approved for listing;
3.8 RELATED REGISTRATION MATTERS.
(a) No Registrable Securities to be sold or otherwise
transferred by Purchaser pursuant to an Underwritten Public Offering
or Shelf Registration provided for under this Agreement shall bear any
legend respecting the transferability of such Registrable Securities,
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nor shall the Company cause or permit any transfer agent or registrar
appointed by the Company with respect to such Registrable Securities
to refuse or fail to effect a transfer or registration with respect to
such Registrable Securities.
(b) Any registration rights granted by the Company to the
Purchaser hereunder shall be exercisable upon notice from Purchasers
holding a majority of the Registrable Securities held at the time of
such notice by such Purchasers.
3.9 INDEMNIFICATION.
(a) The Company agrees to indemnify, defend and hold
harmless the Purchaser, its officers and directors, each underwriter
of the Registrable Securities, and each person who controls the
Purchaser or any such underwriter within the meaning of Section 15 of
the Securities Act, against any and all losses, claims, damages or
liabilities (including reasonable attorneys' fees) to which they or
any of them may become subject under the Securities Act or any other
statute or common law, including any amount paid in settlement of any
litigation, commenced or threatened, if such settlement is effected
with the written consent of the Company (which consent shall not be
unreasonably withheld) (subject to subsection (c) of this Section
3.9), insofar as any such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or in any Blue Sky
application, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnification agreement contained in this subsection (a) shall not
(i) apply to such losses, claims, damages, liabilities or actions
arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by the Purchaser or
any such underwriter for use in connection with the preparation of the
registration statement or any preliminary prospectus or prospectus
contained in the registration statement or any such amendment thereof
or supplement thereto; or (ii) inure to the benefit of any person to
the extent such person's claim for indemnification hereunder arises
out of or is based on any violation by such person of applicable law.
(b) The Purchaser shall, in the same manner and to the
same extent as set forth in subsection (a), indemnify and hold
harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, and its
directors and officers, with respect to any statement or alleged
untrue statement in, or omission or alleged omission from, such
registration statement or any post-effective amendment thereof or any
preliminary prospectus or final prospectus (as amended or
supplemented, if amended or supplemented as aforesaid) contained in
such registration statement, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing
to the Company by the Purchaser for use in connection
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with the preparation of such registration statement or any preliminary
prospectus or final prospectus contained in such registration
statement or any such amendment thereof or supplement thereto,
provided, however, that the liability of the Purchaser hereunder shall
be limited to the amount of proceeds received by the Purchaser in the
offering giving rise to the violation. Each Purchaser shall only be
liable for its own violations and shall not be jointly or severally
liable for the violations of other Purchasers hereunder.
(c) Each person to be indemnified pursuant to this
Section 3.8 will, promptly after its receipt of written notice of the
commencement of any action against such indemnified person in respect
of which indemnity may be sought from an indemnifying person under
this Section 3.8 notify the indemnifying person in writing of the
commencement thereof, provided, however that the failure of any person
to give notice as provided herein shall not relieve the indemnifying
party of its obligations under this Agreement except to the extent
that such indemnifying party is actually prejudiced by such failure to
give notice. If any such action shall be brought against any
indemnified person and it shall notify an indemnifying person of the
commencement thereof, the indemnifying person will be entitled to
participate therein and, to the extent it may desire, jointly with any
other indemnifying person similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified person, and
after notice from the indemnifying person to such indemnified person
of its election so to assume the defense thereof, the indemnifying
person will not be liable to such indemnified person under this
Section 3.8 for any legal or other expenses subsequently incurred by
such indemnified person in connection with the defense thereof other
than reasonable costs of investigation unless (i) the indemnified
person shall have employed counsel in an action in which the
indemnified person and indemnifying person are both defendants and
there is a conflict of interest between such parties that would, in
the reasonable opinion of the indemnified party, prevent counsel from
adequately representing both parties, (ii) the indemnifying person
shall not have employed counsel satisfactory within the exercise of
reasonable judgment of the indemnified person to represent the
indemnified person within a reasonable time after the notice of the
commencement of the action or (iii) the indemnifying person has
authorized the employment of counsel for the indemnified person at the
expense of the indemnifying person. The undertaking contained in this
Section 3.8 shall be in addition to any liabilities which the
indemnifying person may have pursuant to law.
3.10 INFORMATION BY PURCHASER. The Purchaser shall furnish to the
Company such information regarding the Purchaser as the Company may request and
as shall be reasonably required in connection with the registration,
qualification or compliance referred to in Article III.
3.11 RIGHTS NON-TRANSFERABLE. The registration rights provided by
this Agreement are for the sole benefit of the Purchaser, are personal in
nature, and shall not be available to any subsequent holder of the Registrable
Securities.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Purchaser as follows:
(a) VALIDITY OF SHARES. The Shares are in due and proper
form, have been duly authorized by all necessary corporate action on the part
of the Company, and are validly issued, fully paid and non-assessable shares of
Common Stock, free of preemptive rights. Upon delivery of the Shares in
consideration of the purchase price set forth in Section 2.2, the Purchaser
will acquire valid and marketable title to the Shares, free and clear of any
encumbrances.
(b) SEC REPORTS. The Company has filed with the
Commission all proxy statements and periodic reports required to be filed by it
under the Exchange Act (collectively, the "SEC Reports"). Each SEC Report was
in compliance in all material respects with the requirements of the Exchange
Act and did not on the date of its filing (and the SEC Reports as a whole do
not on the date hereof contain) any untrue statement of a material fact or omit
to state 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.
(c) AVAILABILITY OF FORM S-3. The Company is and shall,
during the three year period following the closing of the transaction
contemplated hereby, use its best efforts to remain eligible to use Form S-3 to
register the Registrable Securities in a Shelf Registration on behalf of the
Purchaser.
(d) OFFERING TERMS. The Company has not offered any of
the approximately 1.7 million shares of common stock of the Company which it
has or is in the process of placing privately with investors to any single
investor or investor group at a price or upon terms that are more favorable
than provided to the Purchaser hereunder.
4.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser hereby represents and warrants to the Company the Purchaser is
acquiring the Shares solely for its own account and not with a view to the
public distribution thereof. The Purchaser acknowledges that the Shares have
not and will not be registered under the Securities Act except as provided
herein and agrees that it will only re-offer or resell the Shares purchased
under this Agreement in compliance with the requirements of Rule 144
promulgated under the Securities Act, in accordance with any other available
exemption from the requirements of Section 5 of the Securities Act, or pursuant
to a valid registration statement under the Securities Act. The Purchaser
acknowledges that upon its acquisition of the Shares (other than in connection
with a registered offering thereof), and until such time, if any, as the
Company shall agree that it is no longer necessary or advisable, the Shares
shall bear the following legend:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW AND,
ACCORDINGLY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
RESOLD, PLEDGED, OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER, OR IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER, THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
OTHER APPLICABLE SECURITIES LAWS."
ARTICLE V
MISCELLANEOUS
5.1 AMENDMENT. This Agreement may be amended from time to time by
an instrument in writing signed by all parties to this Agreement.
5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Purchaser hereunder shall not survive the
closing of the transactions contemplated hereby.
5.3 NOTICES. Any notice, request, reply instruction or other
communication (herein severally and collectively called "notice") in this
Agreement provided or permitted to be given to the Company or to the Purchaser
must be given in writing and may be given or served by depositing the same in
the United States mail, in certified or registered form, postage fully prepaid,
addressed to the party or parties to be notified, with return postage fully
requested, or by delivering the same in person to such party or parties.
Notice deposited in the United States mail, mailed in the manner hereinabove
described, shall be effective upon deposit. Notice given in any other manner
shall be effective only if and when received by the party to be notified. For
purpose of notice hereunder, the address of the Company shall be 0000 Xxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 and the address of the Purchaser shall be
0000 XxxXxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
5.4 GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of Texas.
5.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the parties to this Agreement alone and no implication that any
other person has any rights under this Agreement shall be made from the
provisions hereof, provided, however, that the obligations of the Company
pursuant to this Agreement shall be binding upon the Company's successors.
5.6 INVALID PROVISIONS. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such holding shall not
have the effect of invalidating or voiding the remainder of this Agreement and
the parties hereby agree that the portion so held invalid, unenforceable or
void shall, if possible, be deemed amended or reduced in scope, or to otherwise
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be stricken from this Agreement to the extent required for the purposes of
validity and enforcement thereof.
5.7 SECTION HEADINGS. The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
5.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and such counterparts together shall constitute only one
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by themselves or by their respective duly authorized
representatives as of the date first above set forth.
COMPANY:
DIGICON INC.
By: /s/ XXXXXXX X. XxXXXXX
______________________________
PURCHASER:
By: TOCQUEVILLE ASSET MANAGEMENT
L.P.
By: /s/ XXXXXX X. XXXXXXXXXXXX
______________________________
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SCHEDULE A
LIST OF PURCHASERS
Company Name Account Number No. Of Shares
------------ -------------- -------------
Artform, N.V. 086-00712-16-368 10,000
Xxxxxxxxx Xxxxxx and Franccia Sieart, 068-00569-10-368 10,000
Treas. Trust U/D 2/22/88
Montbar, S.A. 086-67200-14-364 120,000
Montbar, S.A. Income A/C 086-67210-12-384 100,000
National Intergroup Inc. 086-00690-95-365 30,000
A/C Pfd & Common
Trace Incorporated TD001 25,000
Jomacim, Incorporated TD002 15,000
WKDL Investments Limited (Cayman) 086-00789-97-385 15,000
The Tocqueville Fund 086-00500-95-367 75,000
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TOTAL 400,000
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