EXHIBIT 10.2
STOCK AGREEMENT
dated as of
July 30, 2002
between
SOFTNET SYSTEMS, INC.,
INDEPENDENCE HOLDING COMPANY
and
MADISON INVESTORS CORPORATION
relating to the purchase and sale
of
5,000,000 Shares of Common Stock
of
SOFTNET SYSTEMS, INC.
by
MADISON INVESTORS CORPORATION
from
CYBER NET TECHNOLOGIES LIMITED
STOCK AGREEMENT
This AGREEMENT dated as of July 30, 2002 is between SoftNet Systems,
Inc., a Delaware corporation (the "CORPORATION"), Independence Holding Company,
a Delaware corporation ("IHC"), and Madison Investors Corporation, a Delaware
corporation ("BUYER"). This agreement shall become effective upon the closing of
the transactions contemplated by the third WHEREAS clause set forth below.
WHEREAS, the Corporation, IHC and SSH Corp., a Delaware corporation
("SSH CORP."), are entering into an agreement pursuant to which the Corporation
will purchase all outstanding securities of First Standard Holdings Corp., a
Delaware corporation and an Affiliate of Buyer, from SSH Corp., on the terms set
forth in Exhibit A (the "FSSIC AGREEMENT");
WHEREAS, IHC is an Affiliate of Buyer that benefits from the rights
provided to Buyer hereunder;
WHEREAS, contemporaneously with the execution of the FSSIC Agreement,
Buyer is purchasing 5,000,000 shares of the Corporation's Common Stock from
Cyber Net Technologies Limited ("CYBER NET") pursuant to an agreement dated as
of July 30, 2002 between Buyer and Cyber Net;
WHEREAS, pursuant to a Stock Purchase Agreement (the "OLD STOCK PURCHASE
AGREEMENT") dated as of October 12, 1999 between the Corporation and Cyber Net,
as successor to Pacific Century Cyberworks Limited, the consent of the
Corporation is required to effect such purchase of shares of Common Stock by
Buyer; and
WHEREAS, the parties intend to restate the rights and obligations under
the Old Stock Purchase Agreement that will apply to the Corporation and Buyer in
connection with Buyer's ownership of Shares and to terminate and supersede the
Old Stock Purchase Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and undertakings contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"AFFILIATE" means, with respect to any specified Person, any other
Person which, directly or indirectly, controls, is controlled by or is under
direct or indirect common control with, such specified Person. For the purposes
of this definition, "control" when used with respect to any person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "affiliated," "controlling," and "controlled" have
meanings correlative to the foregoing.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
"CLOSING DATE" means the date of the closing of the transactions
contemplated by the FSSIC Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the shares of common stock, par value $0.01 per
share, of the Corporation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHARES" means 5,000,000 shares of Common Stock purchased by Buyer from
Cyber Net together with any other shares of capital stock of the Corporation
purchased by Buyer or any Affiliate of Buyer.
ARTICLE 2
LEGENDS ON SHARES
SECTION 2.01 Certificates for Shares. (a) Each certificate for Shares
shall bear the following legend for so long as such securities constitute
restricted securities (as such term is defined in the regulations under the
Securities Act):
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold, transferred or
otherwise disposed of except in compliance with such laws."
(a) The Corporation agrees that, at the request of Buyer or any
Permitted Transferee, it will remove the legend contemplated by this Section
from the certificates representing any Shares in the event that outside counsel
for Buyer
2
or such Permitted Transferee determines that the transfer of such Shares is no
longer restricted by the Securities Act and outside counsel for the Corporation
reasonably concurs in such determination.
(b) The Shares shall also bear a legend stating that their transfer or
sale is restricted by the terms of this Agreement (which shall be removed when
such restrictions no longer apply).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Corporation as of the date hereof
that:
Section 3.01 Purchase for Investment. Buyer is purchasing the Shares for
investment for its own account and not with a view to, or for sale in connection
with, any distribution thereof. Buyer (either alone or together with its
advisors) has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
in the Shares and is capable of bearing the economic risks of such investment.
Buyer is an "accredited investor," as such term is defined in Rule 501 under the
Securities Act. Buyer has been afforded access to all information deemed by it
to by necessary, and has been given an opportunity to ask all necessary
questions of the Corporation's management, in connection with its decision to
acquire the Shares.
ARTICLE 4
COVENANTS OF THE CORPORATION
The Corporation agrees that:
Section 4.01 Buyer Directors. Subject to Section 5.05, for so long as
Buyer (together with its Affiliates) owns a number of Shares equal to or greater
than the number of Shares purchased from Cyber Net, Buyer shall be entitled to
designate for election to the Board of Directors the following number of the
Corporation's directors (the "BUYER DIRECTORS"):
Total Number of Directors Number of Buyer Directors
------------------------- -------------------------
5 2
6 2
7 2
8 3
9 3
10 4
3
Subject to Section 5.05, if the Board of Directors consists of greater
than 10 directors, then Buyer shall be entitled to a number of directors that is
equal to a number of directors pro rata to the ownership of the outstanding
shares of Common Stock on a fully-converted basis of Buyer and its Affiliates
(rounded down to the nearest whole number of directors). Notwithstanding
anything to the contrary in the other provisions of this Section 4.01, once the
Corporation has issued an aggregate of 1,250,000 or more shares of Common Stock
after the date of this Agreement, the number of Buyer Directors shall at no time
thereafter exceed by more than one the percentage of the total number of
directors equal to the ownership interest percentage in the outstanding Common
Stock on a fully-converted basis of Buyer and its Affiliates.
In the event Buyer or its Affiliates sell or otherwise dispose of such
Shares, then Buyer shall be entitled to a number of directors that is equal to
the lesser of (i) two directors and (ii) a number of directors pro rata to its
ownership of the outstanding shares of Common Stock (rounded down to the nearest
whole number of directors). In the event Buyer elects to have the Board of
Directors appoint a Buyer Director, it shall so notify the Corporation in
writing and the Corporation shall (a) increase the size of the Board of
Directors by one and fill the vacancy created thereby by electing the Buyer
Director and (b) in connection with the meeting of shareholders of the
Corporation next following such election, nominate such Buyer Director for
election as director by the shareholders and use its best efforts to cause the
Buyer Director to be so elected. If a vacancy shall exist in the office of a
Buyer Director, Buyer shall be entitled to designate a successor and the Board
of Directors shall elect such successor and, in connection with the meeting of
shareholders of the Corporation next following such election, nominate such
successor for election as director by the shareholders and recommend to
shareholders that the successor be elected. The Buyer Director shall be subject
to the prior approval of the Board of Directors, such approval not to be
unreasonably withheld.
Section 4.02 Other Transfers of Restricted Securities. The Corporation
shall take all actions reasonably necessary to enable holders of the restricted
securities to sell such securities without registration under the Securities Act
pursuant to Rule 144 under the Securities Act or any successor rule or
regulation, subject in each case to the provisions of this Agreement and,
specifically, the filing on a timely basis of all reports required to be filed
under the Exchange Act.
Section 4.03 Preemptive Rights. In connection with any issuance by the
Corporation of shares of Common Stock, the Corporation shall offer Buyer an
opportunity to acquire (on the terms and subject to the conditions generally
applicable to such issuance and simultaneously with such issuance) a sufficient
number of shares to maintain Buyer's then-existing percentage of ownership of
the Corporation's issued and outstanding shares of Common Stock; provided that
in connection with any public offering for cash, Buyer shall be entitled to
acquire
4
shares at a price equal to the public offering price less the underwriter's
commission or discount and provided further that in connection with any issuance
by the Corporation of shares of Common Stock (a) in exchange for non-cash
consideration or (b) upon exercise of stock options with an exercise price of
less than $3.00 per share, Buyer shall be required to pay a per share purchase
price equal to the greater of (j) $3.00 and (k) the Fair Market Value of a share
of Common Stock. For purposes of this Section "FAIR MARKET VALUE" as of any date
shall mean (x) the average of the daily closing prices of a share of Common
Stock for the twenty trading days before such date or (y) if no shares of Common
Stock are then listed or admitted to trading on any national exchange or traded
on any national market system, the fair market value as determined by an
investment bank selected by the Corporation and approved by Buyer.
ARTICLE 5
COVENANTS OF BUYER AND IHC
Buyer and IHC agree that:
Section 5.01 Confidentiality. Buyer and IHC will, and will cause their
respective Affiliates, employees, agents and representatives to, hold in
confidence all documents and other material and information (verbal or
otherwise) containing information which is disclosed by the Corporation to Buyer
or IHC or their respective employees, agents or representatives in connection
with the transactions contemplated by this Agreement ("CONFIDENTIAL
INFORMATION"), and not disclose or publish the same; provided, however, that the
foregoing restriction shall not apply to any portion of the foregoing which (a)
becomes generally available to the public in any manner or form through no fault
of the party receiving the Confidential Information, or its respective
employees, agents or representatives, (b) is released for disclosure by Buyer or
IHC with the Corporation's written consent, (c) is received by Buyer or IHC from
a third party that Buyer or IHC, as applicable, does not know to have an
obligation of confidentiality, or (d) when such disclosure is required by a
court or a governmental agency or is otherwise required by law or is necessary
in order to establish rights under this Agreement. In the event of a proposed
disclosure under item (d), the Person making such disclosure shall deliver as
much advance notice thereof as practical to the Corporation. In the event of the
termination of this Agreement, Buyer and IHC will return or destroy all
documents and other tangible media containing Confidential Information within
thirty (30) days after the date of such termination.
Section 5.02 Sale or Transfer of Shares. Except pursuant to a Change of
Control (as defined below), Buyer and IHC will not, and will cause their
Affiliates not to, sell, pledge, encumber or otherwise transfer, or agree to
sell, pledge, encumber or otherwise transfer, directly or indirectly, any shares
of
5
Common Stock for a period of six months from and after the Closing Date;
provided, that prior to the expiration of such period with the prior written
consent of the Corporation, and thereafter in its sole discretion, Buyer or IHC
may sell, pledge, encumber or otherwise transfer Common Stock (a) (i) in any
transaction (other than a transaction described in (iii) below) in compliance
with Rule 144 under the Securities Act or any successor rule or regulation, (ii)
in a public offering, registered under the Securities Act or (iii) in a private
transaction exempt from the registration requirements of the Securities Act (but
only if Buyer or IHC, as applicable, reasonably believes after due inquiry that
the acquiror, following such transaction, will not be the beneficial owner of
more than 5% of the outstanding shares of Common Stock), and (b) to Permitted
Transferees. A "PERMITTED TRANSFEREE" means a Person that (A) has agreed in
writing to be bound by the terms (including Exhibit B) of this Agreement and (B)
is a Person that is an Affiliate of Buyer.
Section 5.03 Purchase of Additional Shares of Common Stock.
(a) Buyer and IHC agree not to, and agree to cause their
Affiliates not to, purchase any additional shares of Common Stock without the
prior written consent of the Corporation (which may be withheld in the sole
discretion of the Corporation if Buyer owns 40% or more of the outstanding
shares of Common Stock); provided, however, that no consent shall be required
after the consummation of the Offer if following such acquisition of shares of
Common Stock Buyer is the beneficial owner of no more than 40% of the
outstanding shares of Common Stock. Buyer and IHC each agree not to, and to
cause their Affiliates not to, make a formal proposal to acquire control of the
Corporation unless it is invited to do so by the Board of Directors. Buyer
acknowledges and agrees that the directors elected pursuant to Section 4.01
shall not be eligible to deliberate or vote upon any proposal to grant such
consent.
(b) IHC shall, or shall cause one of its Affiliates at its
expense to, (A) commence (within the meaning of Rule 14d-2 under the Exchange
Act) no later than the later of (i) February 18, 2003 or (ii) the date that is
30 days after the Closing Date, a bona fide tender offer, on commercially
reasonable terms for similar offers and including a provision for pro ration in
accordance with ownership of the Common Stock in the event that more shares of
Common Stock are tendered than solicited, for at least the Tender Shares at a
cash price of $3.00 per share net to the seller in cash (the "OFFER") that will
remain open for at least 30 business days, (B) after affording the Corporation a
reasonable opportunity to review and comment thereon, file a Tender Offer
Statement on Schedule TO and all other necessary documents with the Commission,
make all deliveries, mailings and telephonic notices required by Rule 14d-3
under the Exchange Act, and publish, send or give the disclosure required by
Rule 14d-6 under the Exchange Act by complying with the dissemination
requirements of Rule 14d-4 under the Exchange Act in each case in connection
with the Offer (collectively, together with any amendments or supplements
thereto, the "OFFER DOCUMENTS") and (C) use reasonable best efforts to
consummate the Offer, subject to the terms and
6
conditions thereof. Each of IHC, on the one hand, and the Corporation, on the
other hand, agrees promptly to correct any information provided by it or any of
its Affiliates for use in the Offer Documents if and to the extent that it shall
have become false or misleading in any material respect, and IHC further agrees
to take all steps necessary to cause the Offer Documents as so corrected to be
filed with the Commission and to be disseminated promptly to stockholders of the
Corporation, in each case as and to the extent required by applicable federal
securities laws. The obligation of IHC or an Affiliate of IHC, as applicable, to
accept for payment or pay for any shares tendered pursuant to the Offer will not
be subject to any conditions except to the extent required by applicable federal
securities laws. For purposes of this Section, "TENDER SHARES" shall mean the
lesser of (i) 3,000,000 shares of Common Stock and (ii) the maximum number of
shares of Common Stock of the Corporation which, when combined with (A) the
number of shares of Common Stock of the Corporation purchased by Buyer pursuant
to that certain Stock Purchase Agreement dated as of July 30, 2002 between Cyber
Net and Buyer (and/or one of its Affiliates) and (B) all other relevant events
during the applicable testing period, does not result in the percentage of stock
of the Corporation owned by one or more 5 percent shareholders having increased
by more than 44.9 percentage points over the lowest percentage of stock owned by
such shareholders at any time during the testing period, all as within the
meaning of Section 382 of the Internal Revenue Code of 1986, as amended, and the
applicable regulations promulgated thereunder.
(c) Notwithstanding anything to the contrary in this Section 5.03
or elsewhere in this Agreement, Buyer and IHC agree not to take, and to cause
their Affiliates not to take, any action, including the acquisition of
additional shares of Common Stock, that could result in the imposition of
limitations on the use, for federal, state or city income tax purposes, of the
Corporation's carryforwards of net operating losses, federal income tax credits
or similar tax benefits.
Section 5.04 Change of Control. In connection with any transaction
involving the merger of the Corporation with or into any other Person or any
acquisition of 50% or more of the outstanding Common Stock by any other Person
or any other transaction that effects a change in control of the Corporation, in
each case at a per share price higher than $10.00 (a "CHANGE OF CONTROL"), Buyer
and IHC will cause any shares of Common Stock owned by them or their respective
Affiliates to be voted in the same proportion as shareholders (other than Buyer,
IHC or any Affiliate of Buyer, IHC or the Corporation) who individually hold
less than 5% of the outstanding Common Stock.
Section 5.05 Buyer Voting. Until the fifth anniversary of the Closing
Date, Buyer and IHC each agree that it will not solicit, encourage or recommend
to other shareholders of the Corporation that they vote their shares of Common
7
Stock in favor of any nominee or nominees for director other than those duly
proposed and nominated in accordance with Section 4.01 hereof.
ARTICLE 6
COVENANTS OF BUYER, IHC AND THE CORPORATION
Section 6.01 Reasonable Best Efforts; Further Assurances. Subject to the
terms and conditions of this Agreement, Buyer, IHC and the Corporation will use
their reasonable best efforts to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary or desirable under applicable laws
and regulations to carry out the provisions of this Agreement. The Corporation,
IHC and Buyer agree to execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as may be necessary
or desirable in order to carry out the provisions of this Agreement.
Section 6.02 Certain Filings. The Corporation, IHC and Buyer shall
cooperate with one another (i) in determining whether any action by or in
respect of, or filing with, any governmental body, agency, official or authority
is required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection carrying out the
provisions of this Agreement and (ii) in taking such actions or making any such
filings, furnishing information required in connection therewith and seeking
timely to obtain any such actions, consents, approvals or waivers.
Section 6.03 Public Announcements. Prior to the Closing Date, the
parties agree to consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any securities exchange or inter-dealer quotation system,
will not issue any such press release or make any such public statement prior to
such consultation. Following the Closing Date, the parties agree to consult with
each other before issuing any press release or making any public filing that
describes any terms of this Agreement.
Section 6.04 Registration Rights Agreement. The terms set forth in
Exhibit B hereto are hereby incorporated by reference.
ARTICLE 7
MISCELLANEOUS
Section 7.01 Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be deemed duly given,
effective (i) three Business Days later, if sent by registered or certified
mail, return receipt requested, postage prepaid, (ii) when sent if sent by
telecopier or fax, provided that the telecopy or fax is promptly confirmed by
telephone confirmation thereof,
8
(iii) when served, if delivered personally to the intended recipient, and (iv)
one Business Day later, if sent by overnight delivery via a national courier
service, and in each case, addressed,
if to Buyer or IHC, to:
Independence Holding Company
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Fax: (000) 000-0000
if to the Corporation, to:
SoftNet Systems Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Any party may change the address to which notices or other
communications hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
Section 7.02 Amendments and Waivers. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement, or in
the case of a waiver, by the party against whom the waiver is to be effective.
No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of
9
any other right, power or privilege. The rights and remedies herein provided
shall be cumulative.
Section 7.03 Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 7.04 Assignment. The rights and obligations of the parties
hereunder cannot be assigned or delegated except (i) that Buyer may assign any
or all of its rights and obligations under this Agreement under Sections 2.01,
4.02, 6.04 and Exhibit B of this Agreement to any one or more Permitted
Transferees.
Section 7.05 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
Section 7.06 Counterparts; Third Party Beneficiaries. 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 each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder, except for rights provided to
Permitted Transferees under Section 7.04.
Section 7.07 Entire Agreement. This Agreement (including the Exhibits
hereto) constitutes the entire agreement between the parties with respect to the
subject matter of this Agreement and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
Section 7.08 Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 7.09 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
10
Section 7.10 Specific Performance. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to a court of competition jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
Section 7.11 No Recourse. Notwithstanding any of the terms or provisions
of this Agreement, (i) the Corporation agrees that neither it nor any person
acting on its behalf may assert any claims or cause of action against any
officer, director, partner, member or stockholder of Buyer or any of its
Affiliates (other than IHC or when a provision specifically states that it is
binding on such Affiliates) in connection with or arising out of this Agreement
or the transactions contemplated hereby and (ii) each of Buyer and IHC agree
that neither it nor any person acting on its behalf may assert any claims or
cause of action against any officer, director, partner, member or stockholder of
the Corporation or any of its Affiliates in connection with or arising out of
this Agreement or the transactions contemplated hereby.
Section 7.12 Corporation Approval. The Corporation represents and
warrants to Buyer that its Board of Directors has approved, and it consents to,
Buyer's purchase of the Shares from Cyber Net.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SOFTNET SYSTEMS, INC.
By:/S/ Xxxxxx X. Xxxxx
_______________________________________
Name: Xxxxxx X. Xxxxx
Title: Director
MADISON INVESTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
INDEPENDENCE HOLDING COMPANY
By:/s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
12
