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Exhibit 10m
STOCK PURCHASE
AND
REGISTRATION RIGHTS AGREEMENT
THIS STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT ("Agreement") is
entered into on September 28, 1995 between Digicon Inc., a Delaware corporation
(the "Company"), and Value Partners, Ltd. (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 458,497 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 458,497 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 $2,149,204 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. The Company will 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 28, 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 file a registration statement with respect to the
Registrable Securities within thirty days of the receipt of such demand, and
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
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expiration of three 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.
(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 Purchaser disapproves
of the terms of the Underwritten Public Offering, the Purchaser
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may, in its sole discretion, 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.
Any abandoned Demand Registration shall not constitute a Demand Registration
for purposes of this Agreement.
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 counsel.
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 reasonable 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) The Company may require that the Purchaser refrain
from effecting any public sales or distributions of the Registrable
Securities if the board of directors of the Company in good faith
determines in its sole discretion that such public sales or
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distributions would interfere in any material respect with any
transaction involving the Company that in the sole discretion of the
board of directors is material to the Company. The board of directors
shall, as promptly as practicable, give the Purchaser written notice
of any such development. The Company shall be required to lift such
restrictions regarding effecting public sales or distributions of the
Registrable Securities as soon as reasonably practicable after the
board of directors shall determine, in its sole discretion, that the
public sales or distributions by the Purchaser of the Registrable
Securities shall not interfere with such transaction, provided, that
no requirement that the Purchaser refrain from effecting public sales
or distributions in the Registrable Securities may extend for more
than 45 days in the aggregate during the three year period after the
date hereof.
(b) If the Company shall register any Underwritten Public
Offering during any period in which the Purchaser may sell Registered
Securities under a Shelf Registration that is at the time effective
under the Securities Act (other than a registration on Form S-8 of (i)
an employee stock option, stock purchase or compensation plan or of
securities issued or issuable pursuant to such plan or (ii) a dividend
reinvestment plan), the Purchaser agrees, to the extent requested in
writing by the managing underwriter administering such Underwritten
Public Offering as reasonably practicable before the commencement of
the 10 day period referred below, not to effect any public sale or
distribution of securities of the Company during the 10 day period
before the effective date of the registration statement covering such
Underwritten Public Offering and during the period ending on the
earlier of (i) the date such sale or distribution is permitted by such
managing underwriter and (ii) 45 days after such effective date.
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
federal or state 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
(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
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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 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.
(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
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
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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.
3.12 FURTHER ASSURANCES. The Company shall cooperate with the
Purchaser in effecting the disposition of the Shares as contemplated in this
Agreement.
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) NO VIOLATION OF AGREEMENTS. This Agreement and its
execution and delivery by the Company does not, and the fulfillment and
compliance by the Company with the terms and conditions of this Agreement, and
the consummation by the Company of the transactions contemplated hereby, will
not: (i) conflict with the articles of incorporation or the bylaws of the
Company, (ii) violate any provision of, or require any filing, consent,
authorization, or approval under, any law or administrative regulation or any
judicial, administrative, or arbitration order, award, judgment, writ,
injunction, or decree applicable to or binding upon the Company, or (iii)
conflict with, result in a breach of, constitute a default under (without
regard to any requirements of notice or the lapse of time), accelerate, or
permit the acceleration of the
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performance required by, any mortgage, indenture, loan or credit agreement, or
other agreement or instrument evidencing indebtedness for borrowed money to
which the Company is a party, by which it is bound, or to which any of the
properties of the Company are subject.
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 has
received an opinion of counsel to the Purchaser, in form and substance
satisfactory to the Company, that it is no longer necessary or advisable, the
Shares shall bear the following legend:
"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 Company and 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
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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 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 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
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.
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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:
VALUE PARTNERS, LTD.
By: /s/ XXXXXXX XXXXX
_________________________________
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