<PAGE>
As filed with the Securities and Exchange Commission on April 8, 1994,
Registration No. 33-___________________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PARTECH HOLDINGS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 31-1166419
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) I.D. Number)
3366 Riverside Drive, Suite 200, Columbus, Ohio 43221
(Address of principal executive offices) (Zip Code)
CONSULTANT CONTRACT
(Full title of plan)
Paul Weinberger
Vice President, Controller and Assistant Treasurer
Partech Holdings Corporation
3366 Riverside Drive, Suite 200
Columbus, Ohio 43221
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO TO BE PRICE PER AGGREGATE REGISTRATION
BE REGISTERED REGISTERED SHARE PRICE FEE
<S> <C> <C> <C> <C>
Common Stock, par value $0.05 per share (1) 100,000 $0.8125 $81,250.00 $28.02
Common Stock, par value $0.05 per share (1) 75,000 $ 1.00 $75,000.00 $25.86
Total (2)....................................................................................... $53.88
</TABLE>
CALCULATION OF REGISTRATION FEE - NOTES THERETO
(1) The Company is to issue options to purchase 100,000 shares for $0.8125 per
share and options to purchase 75,000 shares for $1.00 per share pursuant
to a compensation arrangement with a consultant. The offering price per
share is calculated pursuant to Rule 457(h), utilizing the exercise price
of the options hereof.
(2) Pursuant to Section 6(b) of the Securities Act of 1933 the minimum fee
shall not be less than $100.00. Therefore, the Company is paying the
required minimum.
Approximate date of proposed sale pursuant to the plan: As soon as
practicable after the Registration Statement becomes effective, as and when
options are exercised.
This registration statement, including all exhibits and attachments, consists of
22 pages.
The exhibit index is on page 5.
<PAGE>
PART II
Item 3. Incorporation of Certain Documents by Reference.
The following documents which are filed with the Securities and Exchange
Commission are incorporated herein by reference in the registration statement
hereof:
(a) The Company's latest annual report on Form 10-K, or, if the financial
statements therein are more current, the Company's latest prospectus,
other than the prospectus of which this document is a part, filed
pursuant to Rule 424(b) or (c) of the Securities Exchange Commission
under the Securities Act of 1933.
(b) All other reports filed by the Company pursuant to sections 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the fiscal
year covered by the annual report or the prospectus referred to in (a)
above.
(c) The descriptions of the Company's $0.05 par value common stock which is
contained in the Company's registration statements filed under section 12
of the Securities Exchange Act of 1934, including any amendment(s)
thereto or reports filed for the purpose of updating such descriptions.
(d) All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior
to the filing of a post-effective amendment to the registration statement
which indicates that all of the shares of common stock offered have been
sold or which deregisters all of such shares then remaining unsold, shall
be deemed to be incorporated by reference in the registration statement
and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that
a statement contained herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
(a) Section 145 of the Delaware Code Annotated, the jurisdiction in which the
Company is incorporated, provides, under certain circumstances, for the
indemnification of directors or officers of a Delaware corporation for
expenses in connection with the defense of any action, suit or proceeding
in relation to certain matters, brought against them as such directors
and officers.
(b) Article Eighth of the Restated Certificate of Incorporation of Partech
Holdings Corporation provides for Indemnification of the Partech's
executive officers and directors. The Restated Certificate of
Incorporation of Partech Holdings Corporation is filed herewith as
Exhibit 3.3.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibit index is filed on page 5 of the registration statement.
Page 2
<PAGE>
Item 9. Undertakings.
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of
1933; (ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement; and (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement.
(a) Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold when all options that
have been and may be granted under the plan shall have expired or
terminated, have been exercised or cancelled, or upon termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of the annual report for the Partech Holdings
Corporation 1989 Incentive Stock Option Plan and Partech Holdings
Corporation 1989 Stock Option and Stock Appreciation Rights Plan pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described heretofore,
or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred
or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling preceding, submit
to a court of appropriate jurisdiction the question whether such
indemnification by them is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
Page 3
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Columbus, the State of Ohio, on this
7th day of April, 1994.
Partech Holdings Corporation
By /s/ JOHN E. RAYL
----------------------------------------
John E. Rayl, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ JOHN E. RAYL Chairman, Chief Executive Officer, April 7, 1994
- ---------------------------------------- President, Treasurer, Director and
John E. Rayl Principal Financial Officer
/s/ THOMAS E. REYNOLDS Vice President, Secretary, Assistant April 7, 1994
- ---------------------------------------- Treasurer and Director
Thomas E. Reynolds
- ---------------------------------------- Director April 7, 1994
Reverend Jerry K. Rayl
/s/ PAUL R. WEINBERGER Vice President, Controller and Assistant April 7, 1994
- ---------------------------------------- Treasurer
Paul R. Weinberger
</TABLE>
Page 4
<PAGE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
<C> <S>
Exhibit 3.1 Bylaws filed as Exhibit 2 to Form 10, Commission File No. 014361
filed on March 28, 1986 is incorporated herein by reference.
Exhibit 3.3 Restated Certificate of Incorporation of Partech Holdings
Corporation dated January 25, 1994, incorporated herein by
reference to Exhibit 3.3 to Form 10-Q for the fiscal quarter
ended January 31, 1994, Commission File No. 014361.
Exhibit 4.1 Instruments Defining the Rights of Security Holders filed as
Exhibit 3 to Form 10, Commission File No. 014361 filed on March
28, 1986 is incorporated herein by reference.
Exhibit 4.2 Form of Common Share Certificate of Partech Holdings Corporation,
incorporated herein by reference to Exhibit B, to Form 8-K, dated
March 13, 1992, Commission File No. 014361.
Exhibit 10.52 Agreement to Grant Options between Partech Holdings Corporation
and M.S. Farrell & Company, Inc. dated April 6, 1994, filed
herewith as Exhibit 10.52.
Exhibit 10.53 Consulting Agreement between Partech Holdings Corporation and
M.S. Farrell & Company, Inc. dated November 13, 1992, filed
herewith as Exhibit 10.53.
Exhibit 20 Letter between Partech Holdings Corporation and M.S. Farrell &
Company, Inc. dated April 6, 1994, filed herewith as Exhibit 20.
Exhibit 23.6 Consent of Hausser + Taylor filed herewith as Exhibit 23.6.
</TABLE>
Page 5
<PAGE>
EXHIBIT 10.52
The undersigned, Partech Holdings Corporation ("Partech") and M.S. Farrell
& Company, Inc. ("MSF") in consideration of the mutual promises and covenants
contained herein, agree as follows:
1. That Partech grants options to MSF to purchase shares of Partech's
common stock, as follows: (a) 100,000 shares at eighty-one and one-quarter
cents ($.8125) per share; and (b) 75,000 shares at one dollar ($1.00) per share.
The foregoing 100,000 shares and 75,000 shares of Partech's common stock are
hereinafter referred to collectively as "The Shares." The Shares shall be
purchased by MSF by April 30, 1994, otherwise all rights of MSF to purchase The
Shares shall expire and be held for naught.
2. The Shares will be registered by Partech under the Securities Act of
1933 (the "Act").
3. Upon purchase of The Shares: (a) MSF will deliver an executed
subscription agreement to Partech in the form attached hereto as Exhibit A and
will deliver payment to Partech by certified check; and (b) Partech will deliver
to MSF The Shares which will at delivery be registered under the Act,
unrestricted, unlegended, and free of any stop transfer instructions to or on
the records of Partech's transfer agent. Partech further agrees that after
delivery of The Shares to MSF, Partech will not take any action that would cause
The Shares to become unregistered under the Act, restricted, legended or subject
to any stop transfer instruction to or on the records of Partech's transfer
agent.
4. Within three (3) days of the execution of this document, Partech agrees
to deliver to MSF any and all documents, instruments and information to be
received by MSF pursuant to the subscription agreement.
5. Partech hereby represents and warrants to and agrees with MSF that The
Shares are issued and to be issued in consideration for bonafide consulting
services, rendered by MSF to Partech, that were not connected to or with the
offer or sale of securities in a capital raising transaction.
6. MSF hereby represents and warrants to and agrees with Partech that The
Shares are issued and to be issued in consideration for bonafide consulting
services, rendered by MSF to Partech, that were not connected to or with the
offer or sale of securities in a capital raising transaction.
7. This document shall not be binding upon either party until and unless
it is manually executed by both parties and each party has received a copy
manually executed by the other party.
M.S. Farrell & Company, Inc. Partech Holdings Corporation
By: By: /s/ JOHN E. RAYL
-------------------------- ------------------------------
Martin F. Schacker, John E. Rayl,
Chief Executive Officer Chief Executive Officer
Date: April ____, 1994 Date: April 6, 1994
<PAGE>
EXHIBIT A
PARTECH HOLDINGS CORPORATION
STOCK SUBSCRIPTION AGREEMENT
NAME OF SUBSCRIBER: M. S. FARRELL & COMPANY, INC.
-----------------------------
NUMBER OF UNITS TO BE ACQUIRED: 175,000 SHARES OF $.05 PAR VALUE COMMON STOCK
---------------------------------------------
CONSIDERATION TO BE TENDERED: CASH IN THE AGGREGATE AMOUNT OF $156,250
----------------------------------------
THIS STOCK SUBSCRIPTION AGREEMENT is between PARTECH HOLDINGS CORPORATION
(hereinafter the "Company") and M. S. FARRELL & COMPANY, INC., 67 Wall Street,
New York, New York 10005 ("Subscriber") pursuant to the terms of this
Agreement.
SECTION 1. GENERAL. This Agreement sets forth the terms under which an
Subscriber will invest in the Company. The Subscriber's execution of this
Agreement constitutes an irrevocable offer to purchase the number of shares of
$0.05 par value common stock of the Company (hereinafter the "Shares") set
forth hereinabove. If the Subscriber's subscription is accepted by the
Company, the Subscriber's execution of this Agreement will constitute its
agreement to be bound by all of the terms and conditions of the Articles of
Incorporation, Bylaws, and Code of Regulations of the Company, as well as the
terms and conditions set forth in this Agreement.
SECTION 2. SUBSCRIBER'S SUBSCRIPTION. The Subscriber hereby subscribes
and agrees to pay for the Shares in the amount indicated above (the
"Subscription Amount") and together herewith tenders the Subscription Amount to
the Company.
SECTION 3. RIGHT TO REJECT. The Subscriber understands that the Company
reserves the right in its sole discretion to reject all or any part of any
subscription. The Subscriber will be notified promptly by the Company whether
the Subscriber's subscription has been accepted. If the Subscriber's
subscription is not accepted, the Subscription Amount shall be promptly
refunded, together with interest earned, if any.
SECTION 4. REPRESENTATIONS AND WARRANTIES. As an inducement to the
Company to accept this subscription and sell the Shares to Subscriber,
Subscriber hereby represents and warrants to the Company as follows:
(a) Subscriber or Subscriber's duly appointed and qualified investment
advisor has the requisite knowledge and experience in financial and business
matters for properly evaluating the risks of an investment in the Company;
(b) Subscriber has received a copy of the Company's Form 10-K for the
fiscal year ending April 30, 1993 and the Company's Form 10-Q for the quarter
ending January 31, 1994, and the Prospectus dated April 8, 1994 (the
"Information") and Subscriber has read the Information in deciding to acquire
shares of stock in the Company;
(c) Subscriber has evaluated the risks of receiving the Shares as
consideration;
(d) Subscriber has been given the opportunity to ask questions of, and
receive answers from, the Company concerning the financial conditions of the
Company and to obtain additional information necessary to verify the accuracy
of the information as Subscriber desires in order to evaluate the Company and
the Shares;
(e) Subscriber or Subscriber's representative have made all inquiries of
the Company they deem necessary in evaluating the Company;
(f) Subscriber understands (i) the Company's financial and operating
history is set forth in the Information, (ii) the Shares are speculative
investments that involve a high degree of risk, and (iii) the Company, its
officers, directors, and employees, and their affiliates may perform services
on behalf of the Company and may receive substantial fees, distributions, and
compensation for performing these services;
(g) the Shares are being acquired by Subscriber in good faith and issued
to Subscriber pursuant to a registration statement filed with the Securities
and Exchange Commission on SEC Form S-8;
<PAGE>
(h) Subscriber understands that the Shares are being issued subject to a
registration on SEC Form S-8 under the Securities Act of 1933 (the "Act") and
such other applicable state securities law, and agrees that the Shares may be
sold, offered for sale, transferred, pledged, hypothecated, or otherwise
disposed only in compliance with the Act and any applicable state securities
law. Subscriber understands the legal consequences of the foregoing to mean
that Subscriber must bear the economic risk of an investment in the Shares;
(i) Subscriber understands no federal or state agency has made any
finding or determination as to the fairness for investment, or any
recommendation or endorsement, of the Company or the Shares; and
(j) all of the representations and warranties of Subscriber contained in
this Agreement and information furnished by Subscriber as a part of this
Agreement are true, correct, and complete in all respects.
The foregoing representations, warranties, agreements, undertakings, and
acknowledgments are made by Subscriber with the intent that they be relied
upon in determining Subscriber's suitability as a transferee of Shares, and
Subscriber agrees that those representations, warranties, agreements,
undertakings, and acknowledgments shall survive Subscriber admission as a
shareholder of the Company. In addition, Subscriber undertakes to notify the
Company immediately of any change in any representation, warranty, or other
information relating to the Subscriber set forth in this Agreement.
SECTION 5. SECURITIES LAWS. NO STATE, FEDERAL OR OTHER JURISDICTION HAS
PASSED UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION. IN ADDITION, THE
SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
SECTION 6. MISCELLANEOUS.
(a) This Agreement shall be irrevocable.
(b) All pronouns contained in this Agreement and any variations of such
pronouns shall be deemed to refer to the masculine, feminine, or neuter,
singular or plural, as the identity of the parties to the Agreement may
require.
(c) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the state of New York with respect to all matters
arising under this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
Subscriber on the date indicated below.
M. S. FARRELL & COMPANY, INC.
By: Date:
---------------------------------------- -----------------------
Title
67 Wall Street
--------------------------------------------- ------------------------------
Address Employer I. D. Number
New York New York 10005
---------------------------------------------
City State Zip Code
Accepted this _____ day of April, 1994, by:
PARTECH HOLDINGS CORPORATION
By:
----------------------------------------
Title
<PAGE>
EXHIBIT 10.53
CONSULTING AGREEMENT
--------------------
AGREEMENT made as of this 13th day of November 1992, by and between PARTECH
HOLDINGS CORPORATION, a Delaware corporation, with its principal executive
offices located at 3366 Riverside Drive, Columbus, Ohio 43221 ("Partech") and
M.S. FARRELL & CO., INC., a New York corporation, with its principal executive
offices located at 67 Wall Street, New York, New York 10005 ("Farrell").
W I T N E S S E T H:
WHEREAS, Farrell is being engaged to assist Partech in strategic planning,
the development of business plans and in conceiving, arranging, structuring and
negotiating business combinations.
WHEREAS, in order to ensure the delivery by Farrell to Partech of ongoing
consulting and advisory services, Farrell and Partech wish to enter into this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto hereby agree as follows:
1. Term. Farrell hereby agrees to act as consultant on behalf of
-----
Partech for the twenty four month term commencing on the date hereof ("Effective
Date") and terminating on the twenty four month anniversary of the Effective
Date, and as such will provide the consulting services described herein.
2. Services. The consulting services to be provided by Farrell pursuant
---------
to the terms of this Agreement shall include, but shall not be limited to; the
identification, evaluation and analysis of potential mergers: asset, business or
other acquisitions; and other business combinations (hereinafter "business
combinations"); review and analysis of documents relating to said business
combinations; evaluation of potential investment opportunities; introducing
and/or arranging for introductions between members of the business community and
Partech; attending meetings with potential third parties relating to the
evaluation, structuring and/or consummation of business combination
transactions; rendering assistance and consultation with respect to negotiations
undertaken by Partech with respect to potential business combinations; and
assisting in the structuring and implementation of business combinations.
Farrell further agrees to devote substantial (but not exclusive) time
toward the performance of its duties hereunder. In addition, Farrell hereby
agrees that it will perform its duties
1
<PAGE>
hereunder in a reasonable prompt manner and that it will undertake and perform
all projects, assignments and tasks reasonably requested by Partech relating
to services described in the preceding paragraph. Farrell further agrees not
to retain the services of any third party in connection with the services to
be rendered hereunder, without Partech's prior written consent. Farrell shall
have reasonable discretion in determining the amount of time necessary to
perform the services required hereunder. It is not intended that such services
require full time and effort by Farrell or any of its employees. Partech
acknowledges that Farrell and/or its affiliates are in the business of
providing consulting advice (of all types contemplated by this Agreement) to
others. Nothing herein contained shall be construed to limit or restrict
Farrell in conducting such business with respect to others, or in rendering
such advice to others.
3. Payment for Services. In consideration for the services to be
---------------------
performed hereunder by Farrell, Partech hereby agrees to pay Farrell (a) the sum
of $5,000 as an initial retainer upon the execution of this Agreement; and (b)
the sum of $2,250 per month on the first day of each month during the term
hereof with the first monthly payment being due upon the execution of this
Agreement. In the event Partech obtain gross proceeds of at least $1,000,000
(the "Target Amount") through the efforts of Farrell, either pursuant to this
Agreement or otherwise, the monthly payment of $2,250 shall be increased to
$3,000 for each month commencing subsequent to the date Partech obtains the
Target Amount. Of said monthly payment, $500 shall be a monthly non-fundable
advance payment of expenses to be incurred by Farrell. In connection with any
and all business combinations commenced by Partech during the term of this
Agreement, Farrell shall also be entitled to receive from Partech transactional
fees in accordance with the Schedules attached hereto as Exhibits 1 and 2. The
monthly fee shall not be applied against the transactional fees earned in
accordance with Exhibits 1 and 2. Partech agrees to reimburse Farrell for its
out-of-pocket expenses, in excess of $500 per month, incurred hereunder,
provided Farrell provides Partech with documentation for such expenses in excess
of $500 per month and, provided further, that until and unless the Target Amount
is obtained by Partech, all expenses of Farrell in excess of the $500 monthly
non-refundable advance shall be submitted to Partech for its prior written
approval. Partech shall reimburse Farrell within ten days of the receipt of
such documentation from Farrell.
4. Equity Compensation. (a) In consideration for Farrell entering into
--------------------
this Agreement, Farrell will receive upon the execution of this Agreement,
options to purchase Partech's common stock in the form attached hereto as
Exhibit 3 for 100,000 shares at $.78125 per share. Such options shall be
exercisable for four (4) years commencing one (1) year from the Effective Date
and shall contain one demand and piggyback registration rights as to the options
and the underlying shares of common stock. Farrell's
2
<PAGE>
demand and piggyback registration rights shall commence one (1) year from the
Effective Date and terminate five (5) years after the Effective Date. Partech
will bear the costs of such registrations. Farrell shall pay any and all
underwriting commissions and non-accountable expenses of any underwriter
selected by Farrell to sell the options and common stock underlying the
options (the "Registrable Securities"), together with the expenses of any
legal counsel selected by Farrell to represent Farrell in connection with the
sale of the Registrable Securities. Partech agrees to use its prompt best
efforts to cause the filing required herein to become effective and to quality
or register the Registrable Securities in such states as are reasonably
requested by Farrell. The Company will maintain the effectiveness of any such
registration statement, filed pursuant to Farrell's demand registration
right, for the greater of (x) sixteen months from the date of the latest
balance sheet of the audited financial statements contained therein on the
initial effective date of such registration statement or (y) one year from
the initial effective date of such registration statement. As to Farrell's
piggyback registration rights, Partech agrees to qualify or register the
Registrable Securities in such additional states as are reasonably requested
by Farrell and Partech shall bear all costs and expenses, including
reasonable counsel fees and expenses, of the qualification or registration of
the Registrable Securities in such additional states as are reasonably
requested by Farrell. As to Farrell's demand and piggyback registration
rights, in no event shall Partech be required to register the Registrable
Securities in a state in which such registration would cause (i) Partech to be
obligated to do business in such state, or (ii) the principal stockholders of
Partech to be obligated to escrow any of their Partech securities.
Additionally, Partech shall not be obligated to include the Registrable
Securities in any registration statement filed by Partech in connection with
a transaction contemplated by Rule 145(a) promulgated under the Securities
Act of 1933, as amended (the "Act") or pursuant to Form S-4. The options to be
granted pursuant to this Agreement shall be deemed fully and completely earned
upon the Effective Date and the subsequent performance by Farrell under this
Agreement shall not affect the validity and enforceability of the options so
granted.
(b) As soon as is practicable, Partech shall file any required
notification or an additional listing application with the National Association
of Securities Dealers, Inc. Automated Quotation Systems ("NASDAQ") and with any
exchange upon which Partech's common stock is traded to list or permit the
trading of the shares of common stock underlying the options. Partech shall
obtain the qualification and listing of the foregoing shares of common stock on
NASDAQ and upon any exchange upon which Partech's shares of common stock are
then traded.
3
<PAGE>
(c) If the shares of Common Stock purchased pursuant to the exercise of
the options are not subject to an effective registration statement under the
Act, the certificate(s) evidencing shares of Common Stock purchased upon
exercise of the options shall bear the appropriate restrictive legend.
5. Overdue Payments. In the event that any payment due Farrell under this
-----------------
Agreement shall not be made when due, interest shall accrue on the unpaid
balance of such overdue payments at the rate of 12% per annum until paid in
full.
6. Conflicts. Farrell shall be an independent contractor and shall have no
----------
right or authority to assume or create any obligation or responsibility, express
or implied, on behalf of or in the name of Partech, unless specifically
authorized in writing by Partech. No provisions of this Agreement shall be
construed to preclude Farrell, or any officer, director, agent, assistant,
affiliate or employee of Farrell from engaging in any activity whatsoever,
including without limitation receiving compensation for managing investments, or
acting as an advisor, broker, or dealer, to any person or advisor, broker, or
dealer, to or participant in any corporation, partnership, trust or other
business entity or from receiving compensation or profit therefor. Farrell shall
not be obligated to present any particular business combination to Partech,
even if such opportunity is of such a character which, if presented to Partech,
could be taken by Partech, and Farrell and any affiliate thereof shall have the
right to take for its own account (individually or as trustee) or to recommend
to others any such particular business combination.
7. Standard of Care. Farrell (including any person or entity acting for
-----------------
or on behalf of Farrell) shall not be liable for any mistakes of fact, errors of
judgment, for losses sustained by Partech or any subsidiary or for any acts or
omissions of any kind, unless caused by the gross negligence or intentional
misconduct of Farrell or any person or entity acting for or on behalf of
Farrell.
8. Farrell's Representation and Warranty. Farrell represents and
--------------------------------------
warrants to Partech that, in connection with the services to be provided to
Partech under this Agreement, Farrell will not violate any law or any rule or
regulation of any governmental body or self-regulatory organization, including
but not limited to the Securities and Exchange Commission ("SEC"), the National
Association of Securities Dealers, Inc. and any securities exchange registered
with the SEC.
9. Indemnification. (a) Partech and its present and future subsidiaries,
----------------
jointly and severally, agree to indemnify and hold harmless Farrell and its
present and future shareholders as well as its and their officers, directors,
affiliates, associates, employees, shareholders, attorneys and agents ("Farrell
Indemnified Parties" or "Farrell Indemnified Party") against any
4
<PAGE>
loss, claim, damage or liability whatsoever (including reasonable attorneys'
fees and expenses), to which such Farrell Indemnified Party may become subject
as a result of performing any act (or omitting to perform any act)
contemplated to be performed by Farrell pursuant to this Agreement if such act
or omission did not violate the provisions of Sections 7 or 8 of this
Agreement. So long as Partech has not provided counsel to the Farrell
Indemnified Party in accordance with the terms of this Agreement, Partech and
its subsidiaries agree to reimburse the Farrell Indemnified Parties on a
monthly basis for the reasonable cost of defending any action or investigation
(including reasonable attorneys' fees and expenses) subject to an
understanding from such Farrell Indemnified Party to repay Partech or its
subsidiaries if it is ultimately and judicially determined that such Farrell
Indemnified Party is not entitled to such indemnity. In case any action, suit
or proceeding shall be brought or threatened, in writing, against any Farrell
Indemnified Party, it shall notify Partech within twenty (20) days after the
Farrell Indemnified Party receives notice of such action, suit or proceeding
and within thirty (30) days after receipt of notice of such threat. Partech
shall have the right to appoint Partech's counsel to defend such action, suit
or proceeding, provided that (i) in the sole judgment of any Farrell
Indemnified Party, there is no conflict involved in such counsel's
representation of such Farrell Indemnified Party and (ii) such Farrell
Indemnified Party consents to representation by such counsel, which consent
shall not be unreasonably withheld. In the event any counsel appointed by
Partech on behalf of any Farrell Indemnified Party shall not be acceptable to
the Farrell Indemnified Party based upon the foregoing conditions, then
Partech shall have the right to designate alternative counsel to such Farrell
Indemnified Party reasonably acceptable to such Farrell Indemnified Party,
until such time as acceptable counsel can be appointed. In any event, Partech
shall, at its sole cost or expense, be entitled to appoint counsel to appear
and participate as co-counsel in the defense thereof. The Farrell Indemnified
Party, or its co-counsel, shall promptly supply Partech's counsel with copies
of all documents, pleadings and notices which are filed, served or submitted
in any of the aforementioned. No Farrell Indemnified Party shall enter into
any settlement without the prior written consent of Partech, which consent
will not be unreasonably withheld.
(b) Farrell agrees to indemnify and hold harmless Partech as well as its
officers, directors, affiliates, associates, employees, shareholders, attorneys
and agents ("Partech Indemnified Parties" or "Partech Indemnified Party")
against any loss, claim, damage or liability whatsoever (including reasonable
attorneys' fees and expenses), to which such Partech Indemnified Party may
become subject as a result of performing any act (or omitting to perform any
act) contemplated to be performed by Farrell pursuant to this Agreement if such
act or omission violates the provisions of Sections 7 or 8 of this Agreement. So
long as Farrell has not provided counsel to the Partech
5
<PAGE>
Indemnified Party in accordance with the terms of this Agreement, Farrell
agrees to reimburse the Partech Indemnified Parties on a monthly basis for the
reasonable cost of defending any action or investigation (including reasonable
attorneys' fees and expenses) subject to an understanding from such Partech
Indemnified Party to repay Farrell if it is ultimately and judicially
determined that such Partech Indemnified Party is not entitled to such
indemnity. In case any action, suit or proceeding shall be brought or
threatened, in writing, against any Partech Indemnified Party, it shall notify
Farrell within twenty (20) days after the Partech Indemnified Party receives
notice of such action, suit or proceeding and within thirty (30) days after
receipt of notice of such threat. Farrell shall have the right to appoint
Farrell's counsel to defend such action, suit or proceeding, provided that (i)
in the sole judgment of any Partech Indemnified Party, there is no conflict
involved in such counsel's representation of such Partech Indemnified Party
and (ii) such Partech Indemnified Party consents to representation by such
counsel, which consent shall not be unreasonably withheld. In the event any
counsel appointed by Farrell on behalf of any Partech Indemnified Party shall
not be acceptable to the Partech Indemnified Party based upon the foregoing
conditions, then Farrell shall have the right to designate alternative counsel
to such Partech Indemnified Party reasonably acceptable to such Partech
Indemnified Party, until such time as acceptable counsel can be appointed. In
any event, Farrell shall, at its sole cost or expense, be entitled to appoint
counsel to appear and participate as co-counsel in the defense thereof. The
Partech Indemnified Party, or its co-counsel, shall promptly supply Farrell's
counsel with copies of all documents, pleadings and notices which are filed,
served or submitted in any of the aforementioned. No Partech Indemnified Party
shall enter into any settlement without the prior written consent of Farrell,
which consent will not be unreasonably withheld.
10. Rights of First Refusal; Notification of Sales. (a) During the three
-----------------------------------------------
(3) year period commencing on the Effective Date and terminating on the three
(3) year anniversary of the Effective Date, Farrell shall have the right of
first refusal to act as underwriter or agent for any and all public or private
offerings of the securities of Partech, or any successor to or subsidiary of
Partech or other entity in which Partech has an equity interest, (the
"Subsequent Company Offering") or any secondary offering of Partech's securities
by its officers, directors and Principal Stockholder(s) (the "Secondary
Offerings"). Accordingly, if during such period Partech intends to make a
Subsequent Company Offering or Partech receives notification from any of its
officers, directors, or Principal Stockholders of its securities of such
holder's intention to make a Secondary Offering, Partech shall notify Farrell
in writing of such intention and of the proposed terms of the offering. Partech
shall thereafter promptly furnish Farrell with such information concerning the
business, condition and prospects of Partech as Farrell may reasonably request.
If within thirty (30) business days of the receipt of
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<PAGE>
such notice of intention and statement of terms Farrell does not accept in
writing such offer to act as underwriter or agent with respect to such
offering upon the terms proposed, Partech, its officer(s), director(s) and
Principal Stockholder(s) shall be free to negotiate terms with other
underwriters or agents with respect to such offering and to effect such
offering on such proposed terms within six (6) months after the end of such
thirty (30) business days. Before Partech and/or its officer(s), director(s)
and Principal Stockholder(s) shall accept any modified proposal from such
underwriter or agent, Farrell's preferential right shall be reinstated and the
same procedure with respect to such modified proposal as provided above shall
be adopted.
(b) Each of the undersigned Officers, Directors and Principal
Stockholders of Partech agree that during the three (3) year period commencing
on the Effective Date and terminating on the three (3) year anniversary of the
Effective Date, to notify Farrell at least five (5) business days in advance of
any proposed sale of Partech's securities by any of them pursuant to Rule 144
under the Act. Any such notice shall be given in a manner contemplated by
Section 12 of this Agreement.
(c) The failure by Farrell to exercise its Right of First Refusal in any
particular instance shall not affect in any way such right with respect to any
other Subsequent Company offering, Secondary Offering or sale.
(d) For the purposes of this Agreement, a "Principal Stockholder" of
Partech shall include each and every person or entity who is known to Partech to
be the beneficial owner of more than five percent of any class of the voting
securities of Partech. Said beneficial ownership and percentage is to be
determined and calculated in accordance with Rule 13d-3, as amended, promulgated
by the Securities and Exchange Commission under the Securities Exchange Act of
1934.
(e) Farrell's Rights of First Refusal hereunder may be terminated at any
time by the payment of the sum of $50,000 to Farrell.
(f) By execution of this Agreement, Partech's Officers, Directors and
Principal Stockholders agree to be bound by the terms of this Section 10.
11. Entire Agreement; Waivers. This Agreement supersedes any and all
--------------------------
agreements, arrangements and understandings relating to the matters provided for
herein, entered into or reached prior to the date hereof. No amendment, waiver
or discharge of any provision hereof shall be effective unless in writing
signed by the parties hereto. This Agreement shall inure to the successors and
assigns of the parties hereto. This Agreement may not be assigned by any party
hereto without the prior written consent of the other parties hereto.
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<PAGE>
12. Notices. All notices and other communications hereunder shall be in
--------
writing and shall be deemed to have been given when delivered personally or
three days after being sent by registered or certified mail, postage prepaid,
return receipt requested, to the address set forth on the signature page of this
Agreement or such other address as any party may notify the others pursuant
thereto.
13. Survivability. All provisions of this Agreement shall become
--------------
effective on the Effective Date and all provisions of this Agreement, except for
the provisions of Sections 2 and 3, shall survive the term of this Agreement
provided for in Section 1 notwithstanding the termination of Sections 2 and 3 of
this Agreement in accordance with Section 1.
14. Headings. The headings in this Agreement are for purposes of
---------
reference only and shall not be considered in construing this Agreement.
15. Consent to Service of Process; Jurisdiction; Venue. Each of the
---------------------------------------------------
parties hereto hereby consents to the personal jurisdiction of the United States
District Court for the Southern District of New York and the courts of the State
of New York in New York County, New York in any action, suit or proceeding
arising under this Agreement, agrees to bring any such action, suit or
proceeding only in such courts and agrees further that service of process or
notice in any such action, suit or proceeding shall be effective if given in
the manner set forth in Section 12 hereof.
16. Options: Interpretation. Following the Effective Date and the
------------------------
issuance of the options set forth in Section 4(a) and in the event of any
inconsistency between the terms and conditions of the executed options and this
Agreement, the executed options shall be controlling.
17. Governing Law. This Agreement shall be governed and interpreted in
--------------
accordance with the laws of the State of New York, without regard to the
conflict of laws principles thereof or the actual domiciles of the parties
hereto.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered in its name and on its behalf, all as of the date
first written above.
M.S. FARRELL & CO., INC. PARTECH HOLDINGS CORPORATION
BY: /s/ MARTIN F. SCHACKER BY: /s/ JOHN E. RAYL
--------------------------------- ---------------------------
Print Name: MARTIN F. SCHACKER Print Name:
Print Title: CHAIRMAN Print Title:
Address: 67 Wall Street Address: 3366 Riverside Drive
New York, NY 10005 Columbus, OH 43221
OFFICERS, DIRECTORS AND
PRINCIPAL STOCKHOLDERS OF
PARTECH HOLDINGS CORPORATION
SIGN BELOW:
/s/ JOHN E. RAYL
-----------------------------------
(Sign Name)
John E. Rayl
-----------------------------------
(Print Name)
3366 Riverside Drive
Columbus, Ohio 43221
-----------------------------------
(Print Address)
-----------------------------------
(Sign Name)
-----------------------------------
(Print Name)
-----------------------------------
(Print Address)
-----------------------------------
(Sign Name)
-----------------------------------
(Print Name)
-----------------------------------
(Print Address)
9
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In the event that Farrell shall first introduce Partech to another party or
entity and that as a result of such introduction, a transaction in the nature
described below between such party or entity and Partech is consummated, then
Farrell will also earn a fee of 10% for each transaction by which Partech
exchanges its assets for (i) cash, (ii) the securities of a third party, or
(iii) the securities of a third party and cash.
Any such fee shall be payable by Partech to Farrell at the closing of such
transaction in (i) cash, (ii) securities, or (iii) a combination of securities
and cash, depending upon whether the transaction involves payment in (i) cash,
(ii) securities, or (iii) a combination of securities and cash, and without
regard to whether payment is made on an installment basis. By way of example,
if Partech receives $100,000 plus 100,000 shares of Common Stock of a third
party in such a transaction, Farrell shall receive the sum of $10,000 plus
10,000 shares of Common Stock of the third party.
EXHIBIT 1
10
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In the event that Farrell shall first introduce Partech to another party or
entity and that as a result of such introduction, a transaction in the nature
described below between such party or entity and Partech is consummated, then
Farrell will also earn transaction fees payable at closing of the related
transaction, for each merger, acquisition, joint venture, business combinations,
debt or lease placement and similar or other on or off balance sheet corporate
finance transactions (but excluding any transaction for which a fee is paid to
Farrell by Partech pursuant to Exhibit 1), Partech shall pay Farrell a fee for
each such transaction computed as follows:
(a) 5% of the first $5,000,000 of the consideration paid in such
transaction;
(b) 4% of the consideration in excess of $5,000,000 and up to $6,000,000;
(c) 3% of the consideration in excess of $6,000,000 and up to
$7,000,000; and
(d) 2% of the consideration in excess of $7,000,000 and up to $8,000,000;
and
(e) 1% of any consideration in excess of $8,000,000.
Any such fee shall be payable by Partech to Farrell at the closing of such
transaction in (i) cash, (ii) securities, or (iii) a combination of securities
and cash, depending upon whether the transaction involves payment in (i) cash,
(ii) securities or (iii) a combination of securities and cash, and without
regard to whether payment is made on an installment basis.
By way of example, if Partech receives $8,000,000 plus 8,000,000 shares of
the Common Stock of a third party to such a transaction, Farrell shall receive
$340,000 in cash and 340,000 shares of Common Stock of the third party.
EXHIBIT 2
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EXHIBIT 3
The parties hereof did not agree to the terms of the Option Agreement
specified as Exhibit 3 to the Consulting Agreement hereof. The Option Agreement
hereof was not completed; therefore, the Option Agreement hereof is not being
filed herewith the Consulting Agreement hereof.
<PAGE>
EXHIBIT 20
April 6, 1994
CONFIDENTIAL
VIA FEDERAL EXPRESS
- -------------------
Mr. Martin F. Schackur
M.S. Farrell & Company, Inc.
67 Wall Street
New York, New York 10005
Dear Marty:
In accordance with our letter of understanding, please find enclosed two
(2) originally executed copies of the Agreement between Partech Holdings
Corporation and M. S. Farrell & Company, Inc., for use in granting to Farrell
the rights to purchase Partech stock pursuant to the termination of the November
13, 1992 Consulting Agreement between the companies. Also enclosed herewith are
two (2) copies of the Stock Subscription Agreement for you to execute on behalf
of Farrell in connection with its acquisition of the Partech stock. Please
execute and return the Subscription Agreement as soon as possible.
As we discussed, the shares of stock to be received by Farrell will be
registered with the SEC on Form S-8 as soon as possible hereafter. Within three
(3) business days after this mailing, we will also forward to you the Prospectus
and other materials required to be delivered pursuant to the S-8 registration.
Should you have any questions regarding this matter, do not hesitate to
contact either me or Chuck Koenig at your convenience.
Sincerely,
PARTECH HOLDINGS CORPORATION
/s/ JOHN E. RAYL
John E. Rayl
Chief Executive Officer
JER:rcc
Enclosures
3366 Riverside Drive, Suite 200, Columbus, Ohio 43221
Telephone: 614-538-0660 Fax: 614-538-0670
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus constituting
part of this registration statement on Form S-8 of our report dated July 28,
1993 on our audit of the consolidated financial statements and financial
statement schedules at April 30, 1993, April 30, 1992 and April 30, 1991 and for
the fiscal years then ended, appearing on page 16 of the Partech Holdings
Corporation Annual Report on Form 10-K for the fiscal year ended April 30, 1993.
/s/ HAUSSER + TAYLOR
Columbus, Ohio
April 7, 1994
