EXHIBIT 10.47
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT ("Agreement") made as of this ____ day
of June, 2000 between ATG INC., a California corporation, with its principal
offices at 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Company")
and the undersigned (the "Subscriber").
W I T N E S S E T H :
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WHEREAS, the Company desires to issue shares of its common stock, no
par value per share (the "Common Stock"), at $2.00 per share, with a minimum
aggregate purchase price of $4,500,000 and, in one or more tranches, a maximum
aggregate purchase price of $5,500,000; and
WHEREAS, the Company and the Common Stock are described in the
Company's Confidential Private Placement Memorandum dated June 26, 2000,
together with all exhibits thereto, as same may thereafter be supplemented
and/or amended (collectively, the "Memorandum"); and
WHEREAS, Subscriber desires to acquire shares of Common Stock having
an aggregate purchase price set forth on the signature page hereof (the
"Purchase Price").
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
1. SUBSCRIPTION FOR SECURITIES AND REPRESENTATIONS BY SUBSCRIBER.
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company for
$2.00 per share, shares of Common Stock aggregating the Purchase Price and the
Company agrees to sell such Common Stock to the Subscriber for the Purchase
Price, subject to the Company's right to sell to the Subscriber such lesser
amount of Common Stock as it may, in its sole discretion, deem necessary or
desirable. The Purchase Price is payable by wire transfer or by check, subject
to collection, as set forth in the "INSTRUCTIONS TO SUBSCRIBERS" contained in
the Subscription Documents Booklet of which this Agreement is a part.
1.2 The Subscriber recognizes that the purchase of the Common
Stock involves a high degree of risk in that (i) the Common Stock sold pursuant
to the Memorandum has not been registered under the Securities Act of 1933, as
amended (the "1933 Act"), and the Company has no obligation to register the
Common Stock except as set forth in Section 3 below, (ii) an investment in the
Common Stock is highly speculative and only investors who can afford the loss of
their entire investment should consider investing in the Company and the Common
Stock; (iii)
the Subscriber may not be able to liquidate the Subscriber's investment as and
when the Subscriber wishes to; and (iv) the Subscriber could sustain the loss of
Subscriber's entire investment. Such risks are more fully set forth in the
Memorandum.
1.3 The private placement of the Common Stock by the Company
(the "Offering") pursuant to the Memorandum shall continue for a period
commencing on the date of the Memorandum and ending on the date set forth in the
Memorandum.
1.4 The Subscriber hereby represents as follows:
(a) The Subscriber represents that the Subscriber is an
Accredited Investor (as defined in Rule 501 of Regulation D promulgated under
the 0000 Xxx) as indicated by the Subscriber's responses to the Confidential
Investor Questionnaire, a copy of which is included in the Subscription
Documents Booklet, and that the Subscriber is able to bear the economic risk of
an investment in the Common Stock.
(b) The Subscriber acknowledges that the Subscriber has
significant prior investment experience, including investment in non-listed and
non-registered securities. The Subscriber recognizes the highly speculative
nature of this investment. The Subscriber acknowledges that the Subscriber has
carefully read the Memorandum, including, but not limited to, the Company's Form
10-K for the fiscal year ended December 31, 1999, the Company's Form 10-K/A for
the fiscal year ended December 31, 1999, the Company's Form 10-Q for the fiscal
quarter ended March 31, 2000, and the description of the Common Stock contained
in the Memorandum and fully understands the contents thereof.
(c) The Subscriber hereby acknowledges that the Offering,
the Common Stock and the Memorandum have not been reviewed by the United States
Securities and Exchange Commission ("SEC") or by any state securities regulator
because it is intended to be a nonpublic offering pursuant to Sections 4(2) and
4(6) of the 1933 Act and Rule 506 of Regulation D promulgated thereunder. The
Subscriber represents that the Common Stock is being purchased for the
Subscriber's own account, for investment purposes only and not for distribution
or resale to others. The Subscriber agrees that the Subscriber will not sell or
otherwise transfer the shares of the Common Stock purchased by the Subscriber
unless they are registered under the 1933 Act or unless an exemption from such
registration is available.
(d) The Subscriber understands that the shares of Common
Stock have not been registered under the 1933 Act by reason of a claimed
exemption under the provisions of the 1933 Act which depends, in part, upon the
Subscriber's investment intention. In this connection, the Subscriber
understands that it is the position of the SEC that the statutory basis for such
exemption would not be present if the Subscriber's representation merely meant
that the Subscriber's present intention was to hold the Common Stock for a short
period, such as the capital gains period of tax statutes, for a deferred sale,
for a market rise, or for any other fixed period. The Subscriber realizes that,
in the view of the SEC, a purchase now with an intent to resell after a pre-
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determined amount of time would represent a purchase with an intent inconsistent
with the Subscriber's representation to the Company, and the SEC might regard
such a sale or disposition as a deferred sale to which such exemptions are not
available.
(e) The Subscriber understands that Rule 144 (the "Rule")
promulgated by the SEC under the 1933 Act requires, among other conditions, a
one year holding period prior to the resale (in limited amounts) of securities
acquired in a non-public offering without having to satisfy the registration
requirements under the 1933 Act. The Subscriber understands that the Company is
under no obligation to register the shares of the Common Stock purchased by the
Subscriber under the 1933 Act, with the exception of certain registration rights
set forth in Section 3 below. The Subscriber acknowledges that the Company may,
if it desires, permit the transfer of such shares of the Common Stock out of the
Subscriber's name only when the Subscriber's request for transfer is accompanied
by an opinion of counsel reasonably satisfactory to the Company that neither the
sale nor the proposed transfer results in a violation of the 1933 Act or any
applicable state "blue sky" laws and subject to the provisions of Section 1.4(f)
hereof.
(f) The Subscriber consents to the placement of a legend on any
certificate or other document evidencing the shares of the Common Stock
purchased by the Subscriber stating that they have not been registered under the
1933 Act and under applicable state securities laws and setting forth or
referring to the restrictions on transferability and sale thereof.
(g) The Subscriber understands that the Company will review
this Agreement and the Confidential Investor Questionnaire; and it is further
agreed that the Company reserves the unrestricted right to reject or limit any
subscription and to close the Offering at any time.
(h) The Subscriber hereby represents that the address of
Subscriber furnished by the Subscriber at the end of this Agreement is the
Subscriber's principal residence, if the Subscriber is an individual, or its
principal business address, if the Subscriber is a corporation or other entity.
(i) The Subscriber has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the Company and the
Offering, and all such questions, if any, have been answered to the full
satisfaction of the Subscriber; and the Company shall provide Subscriber with
the opportunity to ask additional questions of and receive answers (all of which
information shall be limited to information in the public realm) from the
Company concerning the Company during the period which the Subscriber owns the
Common Stock purchased in the Offering.
(j) The Subscriber has such knowledge and expertise in financial
and business matters that the Subscriber is capable of evaluating the merits and
risks involved in an investment in the Common Stock.
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(k) The Subscriber has full power and authority to execute and
deliver this Agreement and to perform the obligations of the undersigned
hereunder; and this Agreement is a legally binding obligation of the Subscriber
enforceable in accordance with its terms.
(l) Except as set forth in this Agreement and the Memorandum, no
representations or warranties have been made to the Subscriber by the Company,
the Placement Agent (as defined in the Memorandum) or any of their respective
agents, employees or affiliates, and in entering into this transaction, the
Subscriber is not relying on any information, other than that contained in the
Memorandum and the public documents of the Company (e.g., the Form 10-K for the
fiscal year ended December 31, 1999, the Form 10-K/A for the fiscal year ended
December 31, 1999 and the Form 10-Q for the fiscal quarter ended March 31,
2000), and the results of an independent investigation by the Subscriber.
(m) The Subscriber agrees that Subscriber will not sell or
otherwise transfer the shares of the Common Stock unless they are registered
under the 1933 Act and applicable state "blue sky" laws or unless an exemption
from such registration is available. The Subscriber represents that (i) the
Subscriber has adequate means of providing for the Subscriber's current needs
and possible personal contingencies, (ii) the Subscriber has no need for
liquidity in this investment, (iii) the Subscriber is able to bear the
substantial economic risk of an investment in the Common Stock for an indefinite
period, and (iv) at the present time the Subscriber could afford a complete
loss of such investment.
(n) It is understood that all documents, records and books
pertaining to this investment have been made available for inspection by the
Subscriber's attorney and/or accountant and the Subscriber.
2. TERMS OF SUBSCRIPTION.
(a) The Offering of the Common Stock is being made on a "best
efforts" basis as more particularly set forth in the Memorandum.
(b) Within ninety (90) days of the Final Closing Date (as
defined in the Memorandum), the Company will use its reasonable best efforts to
raise an additional $3,000,000 in the aggregate by closing on the sale of
convertible securities on terms mutually acceptable to the Company and Placement
Agent (the "Additional Offering"); provided, however, that if the Company
obtains additional financing of at least $3,000,000 during such ninety (90) day
period from an institution, including, without limitation, a bank, insurance
company or leasing company, the Company will not be required to use its
reasonable best efforts to close on the Additional Offering. The Company shall,
prior to the first closing of any such sale of convertible securities, provide
written notice to the Subscriber. Such notice shall include a description of the
proposed transaction and all documents relating thereto and shall afford the
Subscriber the right to participate in such transaction by exchanging the shares
of Common Stock sold to the Subscriber pursuant to the Memorandum for such
convertible securities. The Subscriber shall have fifteen (15) days after
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receiving notice from the Company to deliver written notice to the Company
(together with the original Common Stock and such other documents as the Company
shall reasonably request) that such Subscriber desires to participate in the
transaction. In order to participate, the Subscriber must do so as to all but
not less than all of the Purchase Price paid for the Common Stock. After receipt
by the Company of the Subscriber's notice to participate, the Company will
promptly deliver to the Subscriber the convertible securities against surrender
by the Subscriber of the original shares of Common Stock.
(c) If one or more Subscribers (which Subscribers, if more than
one, must be affiliates as such term is defined in Rule 405 promulgated under
the 1933 Act), purchases a minimum of 2,000,000 shares of Common Stock pursuant
to this Offering for an aggregate investment of at least $4,000,000, such
Subscribers shall be have the right (but not the obligation) to nominate one (1)
director to the Board of Directors of the Company (the "Right to Nominate"). If
such Right to Nominate is exercised within ninety (90) days after the Final
Closing Date, the Company shall appoint such Subscribers' nominee as an observer
to the Board of Directors and, after ninety (90) days following the Final
Closing Date, the Company shall appoint such Subscribers' nominee to the Board
of Directors. If such Right to Nominate is exercised more than ninety (90) days
after the Final Closing Date, the Company shall appoint such Subscribers'
nominee to the Board of Directors at that time. The Company shall thereafter
include such Subscribers' nominee in the slate of nominees recommended by the
Company's Board of Directors to shareholders for election as a director at each
subsequent meeting at which directors are elected; provided, however, that if at
any time such Subscribers hold in the aggregate less than 50% of the shares of
Common Stock acquired by such Subscribers in the aggregate pursuant to the
Memorandum, such Subscribers shall permanently lose the Right to Nominate. Such
Subscribers' written designation of the nominee to be appointed to the Board of
Directors or included in the slate of directors recommended for election shall
include all information regarding such nominee that is required by Item 7 of
Schedule 14A of Regulation 14A of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), as well as such other information regarding such
nominee as the Company shall reasonably request.
3. REGISTRATION RIGHTS.
(a) As soon as possible after the Initial Closing Date (as
defined in the Memorandum), but in no event later than 45 days after the Initial
Closing Date (regardless of whether the maximum number of shares of Common Stock
shall have been sold), the Company shall, at its sole cost and expense, file a
registration statement ("Registration Statement") on the appropriate form under
the 1933 Act with the SEC with respect to the shares of Common Stock and
Additional Shares (as defined below), if any (collectively, the "Registrable
Securities"), time being of the essence. The Company will use its best efforts
to have such Registration Statement declared effective as soon as possible after
filing, and to keep such Registration Statement current and effective for at
least three (3) years from the Initial Closing Date or until such earlier date
as all of the Registrable Securities registered pursuant to such Registration
Statement shall have been sold. Notwithstanding anything to the contrary
contained herein, if such Registration Statement shall not be filed with the SEC
within 45 days after the Initial Closing Date or the Registration Statement
shall not be declared effective within 120 days after the Initial Closing Date
(regardless of whether the maximum number of shares of Common Stock shall have
been sold), then (i) with respect to the failure to file the Registration
Statement within 45 days of the Initial Closing Date, the registered
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holders of such Registrable Securities (including transferees authorized under
applicable securities laws; hereinafter, collectively the "Registered Holders")
shall be entitled at no cost to additional shares of Common Stock from the
Company ("Additional Shares") equal to the product of three (3%) percent of the
number of Registrable Securities owned by each such holder, and the number of
thirty (30) day periods, or any part thereof, beyond said forty-five (45) day
period, until the initial Registration Statement described herein covering the
Registrable Securities is filed with the SEC, and/or (ii) with respect to the
Registration Statement not being declared effective within 120 days of the
Initial Closing Date, the Registered Holders shall be entitled at no cost to
Additional Shares equal to the product of two (2%) percent of the number of
Registrable Securities owned by each such holder, and the number of thirty (30)
day periods, or any part thereof, beyond said 120 day period, until the initial
Registration Statement described herein covering the Registrable Securities is
declared effective. The maximum number of Additional Shares issuable pursuant to
this provision shall be thirty-six (36%) percent.
(b) If the Company effects any registration under the 1933 Act
of any Registrable Securities pursuant to Section 3(a) above or 3(g) below, the
Company shall indemnify, to the extent permitted by law, and hold harmless any
person or entity whose Registrable Securities are included in such Registration
Statement (each, a "Seller"), any underwriter, any officer, director, affiliate,
shareholder, employee or agent of any Seller or underwriter, and each other
person, if any, who controls any Seller or underwriter within the meaning of
Section 15 of the 1933 Act, against any losses, claims, damages, liabilities,
judgment, fines, penalties, costs and expenses, joint or several, or actions in
respect thereof (collectively, the "Claims"), to which each such indemnified
party becomes subject, under the 1933 Act or otherwise, insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or prospectus or
any amendment or supplement thereto or any document filed under a state
securities or blue sky law (collectively, the "Registration Documents") or
insofar as such Claims arise out of or are based upon the omission or alleged
omission to state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made therein not misleading,
and will reimburse any such indemnified party for any legal or other expenses
reasonably incurred by such indemnified party in investigating or defending any
such Claim; provided that the Company shall not be liable in any such case to a
particular indemnified party to the extent such Claim is based upon an untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission of a material fact made in any Registration Document in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such indemnified party specifically for use in the preparation of such
Registration Document.
(c) In connection with any registration statement in which any
Seller is participating, each Seller, severally and not jointly, shall
indemnify, to the extent permitted by law, and hold harmless the Company, each
of its directors, each of its officers who have signed the registration
statement, each other person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act, each other Seller and each underwriter,
any officer, director, affiliate, shareholder, employee or agent of any such
other Seller or underwriter and each other person, if any, who controls such
other Seller or underwriter within the meaning of Section 15 of the 1933 Act
against any Claims to which each such indemnified party may become subject under
the 1933 Act or otherwise, insofar as such Claims (or actions in respect
thereof) are based upon any untrue
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statement or alleged untrue statement of any material fact contained in any
Registration Document, or insofar as any Claims are based upon the omission or
alleged omission to state in any Registration Document a material fact required
to be stated therein or necessary to make the statements made therein not
misleading, and will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in investigating or
defending any such Claim; provided, however, that such indemnification or
reimbursement shall be payable only if, and to the extent that, any such Claim
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Document in reliance
upon and in conformity with written information furnished to the Company by the
Seller specifically for use in the preparation thereof.
(d) Any person entitled to indemnification under Section 3(b) or
3(c) above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Section 3(d), but the
omission of such notice shall not relieve the indemnifying party from any
liability which it may have to any indemnified party under Section 3(b) or 3(c)
above, except to the extent that such failure shall materially adversely affect
any indemnifying party or its rights hereunder. In case any action is brought
against the indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it chooses, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party; and, after notice from
the indemnifying party to the indemnified party that it so chooses, the
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that (i) if the indemnifying party fails to take
reasonable steps necessary to defend diligently the Claim within twenty (20)
days after receiving notice from the indemnified party such that the indemnified
party believes it has failed to do so; (ii) if the indemnified party who is a
defendant in any action or proceeding which is also brought against the
indemnifying party reasonably shall have concluded that there are legal defenses
available to the indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all indemnified
parties, except to the extent any indemnified party or parties reasonably shall
have concluded that there are legal defenses available to such party or parties
which are not available to the other indemnified parties or to the extent
representation of all indemnified parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct) and the
indemnifying party shall be liable for any reasonable expenses therefor;
provided, that no indemnifying party shall be subject to any liability for any
settlement of a Claim made without its consent (which may not be unreasonably
withheld, delayed or conditioned). If the indemnifying party assumes the defense
of any Claim hereunder, such indemnifying party shall not enter into any
settlement without the consent of the indemnified party if such settlement
attributes liability to the indemnified party.
(e) If for any reason the indemnity provided in Section 3(b) or
3(c) above is unavailable, or is insufficient to hold harmless, an indemnified
party, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of any Claim in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party
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on the one hand and the indemnified party on the other from the transactions
contemplated by this Agreement. If, however, the allocation provided in the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable in respect of any Claim shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
Notwithstanding the foregoing, no underwriter or controlling person thereof, if
any, shall be required to contribute, in respect of such underwriter's
participation as an underwriter in the offering, any amount in excess of the
amount by which the total price at which the Registrable Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligation
of any underwriters to contribute pursuant to this paragraph (e) shall be
several in proportion to their respective underwriting commitments and not
joint.
(f) The provisions of Section 3(b) through 3(e) of this
Agreement shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract
and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall
survive the transfer of the Registrable Securities by any such party.
(g) The Registered Holders shall have certain "piggy-back"
registration rights with respect to the Registrable Securities as hereinafter
provided:
A. If at any time after the date of the Final Closing
Date and prior to the date that the Registrable Securities are registered under
the 1933 Act pursuant to Section 3(a) above, the Company shall file with the SEC
a registration statement under the 1933 Act (other than a registration statement
on Form S-4 or Form S-8, or any successor thereto, or filed in connection with
an exchange offer or an offering of securities solely to the Company's existing
shareholders) registering any shares of Common Stock, the Company shall give
written notice to each Registered Holder thereof prior to such filing.
B. Within fifteen (15) days after such notice from
the Company, each Registered Holder shall give written notice to the Company as
to whether or not the Registered Holder desires to have all or any of the
Registered Holder's Registrable Securities included in the registration
statement. If a Registered Holder fails to give such notice within such period,
such Registered Holder shall not have the right to have such Registered Holder's
Registrable Securities registered pursuant to such registration statement. If a
Registered Holder gives such
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notice, then the Company shall include such Registered Holder's Registrable
Securities in the registration statement, at the Company's sole cost and
expense, subject to the remaining terms of this Section 3(g); provided, however,
that each Registered Holder shall pay all underwriting discounts, commissions
and transfer taxes as well as his, her or its own counsel fees, if any, relating
to the sale of such Registered Holder's Registrable Securities.
C. If the registration statement relates to an
underwritten offering, and the underwriter shall determine in writing that the
total number of shares of Common Stock to be included in the offering, including
the Registrable Securities, shall exceed the amount which the underwriter in its
sole discretion deems to be appropriate for the offering, the number of shares
of the Registrable Securities shall be reduced pro rata (based on the number of
Registrable Securities requested to be included). The Registered Holders
participating in the offering shall enter into such agreements as may be
reasonably required by the underwriters.
D. The Registered Holders shall have two (2) opportunities
to have the Registrable Securities registered under this Section 3(g); provided
however that their Registrable Securities are not sooner registered under the
1933 Act pursuant to Section 3(a) above.
E. The Registered Holder shall furnish in writing to the
Company such information as the Company shall reasonably require in connection
with a registration statement.
F. The Company may, at any time and in its sole
discretion, decide not to proceed with the filing of a registration statement
which may have give rise to "piggy back" rights under this Section 3(g) or may
at any time terminate or suspend such registration, in which event each
Registered Holder's rights under this Section 3(g) as to the number of
opportunities to "piggy-back" shall be reset.
(h) If and whenever the Company is required by the provisions of
this Section 3 to use its best efforts to register any Registrable Securities
under the 1933 Act, the Company shall, as expeditiously as possible under the
circumstances and subject to the terms of this Section 3:
A. Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective as soon as possible after filing
and remain effective.
B. Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement current and
effective and to comply with the provisions of the 1933 Act, and any regulations
promulgated thereunder, with respect to the sale or disposition of all
Registrable Securities covered by the registration statement required to effect
the distribution of the securities, but in no event shall the Company be
required to do so for a period of more than three (3) years following the Final
Closing Date.
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C. Furnish to the Sellers participating in the offering,
copies (in reasonable quantities) of summary, preliminary, final, amended or
supplemented prospectuses, in conformity with the requirements of the 1933 Act
and any regulations promulgated thereunder, and other documents as reasonably
may be required in order to facilitate the disposition of the securities, but
only while the Company is required under the provisions hereof to keep the
registration statement current.
D. Use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions of the United States as the
Sellers participating in the offering shall reasonably request, and do any and
all other acts and things which may be reasonably necessary to enable each
participating Seller to consummate the disposition of the Registrable Securities
in such jurisdictions.
E. Notify each Seller selling Registrable Securities, at
any time when a prospectus relating to any such Registrable Securities covered
by such registration statement is required to be delivered under the 1933 Act,
of the Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and promptly prepare and furnish to each such
Seller selling Registrable Securities a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
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 not misleading in
the light of the circumstances then existing.
F. As soon as practicable after the effective date of the
registration statement, and in any event within eighteen (18) months thereafter,
make generally available to Sellers participating in the offering an earnings
statement (which need not be audited) covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement which earnings statement shall satisfy the provisions of Section 11(a)
of the 1933 Act, including, at the Company's option, Rule 158 thereunder. To the
extent that the Company files such information with the SEC in satisfaction of
the foregoing, the Company need not deliver the above referenced earnings
statements to Sellers.
G. Upon request, deliver promptly to councel of each
Seller participating in the offering copies of all correspondence between the
SEC and the Company, its counsel or auditors and all memoranda relating to
discussions with the SEC or its staff with respect to the registration statement
and permit each such Seller to do such investigation at such Seller's sole cost
and expense, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary. Each Seller agrees that it will use its best efforts not to interfere
unreasonably with the Company's business when conducting any such investigation
and each Seller shall keep any such information received pursuant to this
Section confidential.
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H. Provide a transfer agent located in the United States
for all such Registrable Securities covered by such registration statement not
later than the effective date of such registration statement.
I. List the Registrable Securities covered by such
registration statement on such exchanges and/or on the NASDAQ as the Common
Stock is then currently listed upon.
J. Pay all Registration Expenses incurred in connection
with a registration of Registrable Securities, whether or not such registration
statement shall become effective; provided that each Seller shall pay all
underwriting discounts, commissions and transfer taxes, and its own counsel
fees, if any, relating to the sale or disposition of such Seller's Registrable
Securities pursuant to a registration statement. As used herein, "Registration
Expenses" means any and all reasonable and customary expenses incident to
performance of or compliance with the registration rights set forth herein,
including, without limitation, (i) all SEC and stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses of complying with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities, but no other
expenses of the underwriters or their counsel), (iii) all printing, messenger
and delivery expenses, and (iv) the reasonable fees and disbursements of counsel
for the Company and the Company's independent public accountants.
(i) The Company acknowledges that there is no adequate remedy at
law for failure by it to comply with the provisions of this Section 3 and that
such failure would not be adequately compensable in damages, and therefore
agrees that its agreements contained in this Section 3 may be specifically
enforced. In the event that the Company shall fail to file such registration
statement when required pursuant to Section 3(a) above or to keep any
registration statement effective as provided in this Section 3 or otherwise
fails to comply with its obligations and agreements in this Section 3, then, in
addition to any other rights or remedies the Registered Holders may have at law
or in equity, including without limitation, the right of rescission, the Company
shall indemnify and hold harmless the Registered Holders from and against any
and all manner or loss which they may incur as a result of such failure. In
addition, the Company shall also reimburse the Registered Holders for any and
all reasonable legal fees and expenses incurred by them in successfully
enforcing their rights pursuant to this Section 3, regardless of whether any
litigation was commenced.
4. MISCELLANEOUS.
4.1 The Company agrees to use its best efforts to file timely
all reports required to be filed by it pursuant to Sections 13 or 15 of the 1934
Act, and to provide such information as will permit the holder to sell the
Common Stock acquired by it pursuant to the Offering in accordance with Rule 144
under the 0000 Xxx.
4.2 All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a)
when delivered by hand, (b) one business day after the business day of
transmission if sent by telecopier (with receipt confirmed),
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provided that a copy is mailed by certified mail, return receipt requested, or
(c) one business day after the business day of deposit with the carrier, if sent
for next business day delivery by Express Mail, Federal Express or other
recognized express delivery service (receipt requested), in each case addressed
to the Company at the address indicated on the first page of this Agreement
marked "Attention: Xxxxxx Xxxx, Chief Executive Officer", and to the Subscriber
at the Subscriber's address indicated on the last page of this Agreement (or to
such other addresses and telecopier numbers as a party may designate as to
itself by notice to the other parties).
4.3 This Agreement shall not be changed, modified or amended
except by a writing signed by the parties to be charged, and this Agreement may
not be discharged except by performance in accordance with its terms or by a
writing signed by the party to be charged.
4.4 This Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter thereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them.
4.5 Notwithstanding the place where this Agreement may be
executed by any of the parties hereto, the parties expressly agree that all the
terms and provisions hereof shall be construed in accordance with and governed
by the laws of the State of New York. The parties hereby agree that any dispute
which may arise between them arising out of or in connection with this Agreement
shall be adjudicated before a court located in New York and they hereby submit
to the exclusive jurisdiction of the courts of the State of New York and of the
federal courts in New York with respect to any action or legal proceeding
commenced by any party, and irrevocably waive any objection they now or
hereafter may have respecting the venue of any such action or proceeding brought
in such a court or respecting the fact that such court is an inconvenient forum,
relating to or arising out of this Agreement or any acts or omissions relating
to the sale of the securities hereunder, and consent to the service of process
in any such action or legal proceeding by means of registered or certified mail,
return receipt requested, in case of the address set forth below or such other
address as the undersigned shall furnish in writing to the other.
4.6 This Agreement may be executed in counterparts. Upon the
execution and delivery of this Agreement by the Subscriber, this Agreement shall
become a binding obligation of the Subscriber with respect to the purchase of
the Common Stock as herein provided; subject, however, to the right hereby
reserved to the Company to enter into the same agreements with other subscribers
and to add and/or to delete other persons as subscribers.
4.7 The holding of any provision of this Agreement to be invalid
or unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
4.8 It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not operate, or be construed, as a waiver
of any subsequent breach by that same party.
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4.9 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
TO BE COMPLETED BY SUBSCRIBER
_____________________________________
Print Name
Signature for Individual Subscriber Signature of Subscriber Other than Individual
_____________________________ By: _______________________________________
Signature Name:
Title:
_____________________________________
Address
_____________________________________
City State Zip Code
_________________________________________
Aggregate Purchase Price for Common Stock
__________________________________________
Social Security or Employer Identification
Number
SUBSCRIPTION ACCEPTED:
ATG INC.
By:_______________________________________
Name: Xxxxxx Xxxx
Title: Chief Executive Officer
Date:_____________________________________
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