Exhibit 7.2
AGREEMENT FOR PURCHASE OF STOCK
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This Agreement ("Agreement"), made and entered into as of the 16th day
of April, 2001 by and between Advanced Technology, Industries Inc., a Delaware
corporation, ("ATI") and Xxxxx X. Xxxxxx Separate Property Trust of September 1,
1987 (as amended and restated as of March 21, 2001) ("Shareholder") provides as
follows:
RECITALS
A. Shareholder is the owner of 1,090,000 shares of the $.0001 par value
common stock of Nurescell Inc., a Nevada corporation ("Nurescell"), which stock
is hereinafter referred to as "The Nurescell Stock." The principal place of
business of Nurescell is in Orange County, California.
B. ATI is a publicly owned corporation with authorized capital of fifty
million (50,000,000) shares of $.0001 par value common stock and one million
(1,000,000) shares of $.001 par value preferred stock.
C. ATI desires to purchase, and Shareholder desires to sell, The
Nurescell Stock in exchange for shares of the ATI common stock upon the terms
and provisions set forth hereinafter.
NOW THEREFORE, in consideration for the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follow:
1. Transfer of Shares.
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Upon execution of this Agreement, Shareholder shall sell,
transfer, and convey to ATI The Nurescell Stock and ATI shall sell, issue and
convey to Shareholder 1,090,000 shares of the $.0001 par value common stock of
ATI hereinafter referred as the "ATI Stock".
2. Warranties and Representations of Shareholder.
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Shareholder hereby makes the following representations and
warranties to ATI:
2.01. Shareholder has the full right and power to sell and
transfer to ATI The Nurescell Stock free and clear of any statutory, contractual
or other limitation, and none of such shares are subject to any lien, pledge,
hypothecation or any encumbrance whatsoever. The sale provided for herein will
vest directly in ATI title to The Nurescell Stock free and clear of any and all
encumbrances, liens, restrictions, options, agreements, and conditions except as
set forth in Section 4.03 hereof and except as may be the result of actions by
ATI.
2.02. Shareholder is an "accredited investor" because
Shareholder is (initial appropriate item):
_____A natural person whose individual net worth, or joint new
worth with that person's spouse, at the time of his purchase exceeds $1,000,000:
or
_____A natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year: or
GAC A trust, with total assets in excess of $5,000,000, not
---
formed for the specific purpose of acquiring the securities offered hereby,
whose purchase is directed by a sophisticated person, as described below; or
____An entity in which all of the equity owners are accredited
investors.
2.03 Shareholder has significant prior investment experience,
including investments in unregistered securities and recognizes the speculative
nature of this investment Shareholder is knowledgeable, sophisticated and
experienced in making and is qualified to make decisions with respect to
investments in restricted securities such as the ATI Stock and has requested,
received, reviewed and considered all information Shareholder deems relevant in
making a decision to execute this Agreement. Shareholder is capable of
evaluating the merits and risks of an investment in the ATI Stock.
2.04 Shareholder has relied upon the information contained in
ATI's filings with the Securities and Exchange Commission (the "SEC") under
Section 13 of the Securities Exchange Act of 1934, this Agreement, and
independent investigations of ATI made by Shareholder. Shareholder has been
given access and the opportunity to examine all material books and records of
ATI, all material contracts and has had the opportunity to ask questions of and
to receive answers from ATI or any person acting on its behalf concerning the
terms and conditions of the transaction contemplated by this Agreement.
Shareholder has been furnished with all material relating to the business,
finances and operations of ATI and materials relating to the offer and sale of
the ATI Stock which have been requested by such person and such person has
received complete and satisfactory answers to any such inquiries. Shareholder
agrees to maintain all information furnished to him by ATI in confidence and not
to disclose the same to any third party without the written consent of ATI.
3. Representation and Warranties of ATI.
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ATI hereby makes the following representations and warranties
to Shareholder:
3.01 ATI is a Delaware corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has
full corporate power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby. The Board of Directors of ATI has taken
all action required by law, ATI's corporate charter, its By-Laws, or otherwise,
to be taken by it to authorize the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
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3.02 The ATI Stock delivered hereunder shall be validly issued
and outstanding and is fully paid and non-assessable.
3.03 ATI has, and will have at the Closing, the full right and
power to sell and transfer to Shareholder the ATI Stock agreed to be transferred
hereunder free and clear of any statutory, contractual, or other limitation, and
none of said shares are subject to any lien, pledge, hypothecation, or any
encumbrance whatsoever. The sale provided for herein will vest directly in
Shareholder title to the ATI Stock, free and clear of any and all encumbrances,
liens, restrictions, options, agreements, and conditions except as set forth in
Paragraph 4.02 hereof and except as a result of actions by Shareholder.
3.04 The person or persons executing this agreement on behalf
of ATI have the requisite power authority to do so and to make, execute, and
deliver all instruments and documents to be executed in connection herewith.
3.05 ATI has significant prior investment experience,
including investments in unregistered securities, and recognizes the speculative
nature of this investment. ATI is knowledgeable, sophisticated and experienced
in making and is qualified to make decisions with respect to investments in
restricted securities such as The Nurescell Stock and has requested, received,
reviewed and considered all information ATI deems relevant in making a decision
to execute this Agreement. ATI is capable of evaluating the merits and risks of
an investment in The Nurescell Stock.
3.06 ATI has relied upon the information contained in
Nurescell's filings with the SEC under Section 13 of the Securities Exchange Act
of 1934, this Agreement, and independent investigations of Nurescell made by
ATI.
3.07 ATI is acquiring the shares on ATI's own account and not
with a view to or for sale in connection with any distribution of the security.
4. Restrictions Upon Shares-Investment Representation.
-- ---------------------------------------------------
4.01 Shareholder warrants and represents that Shareholder is
acquiring the ATI Stock for Shareholder's own account, for investment and not
with a view to, or for sale in connection with, any distribution of such shares
or any part thereof. Shareholder further warrants and represents that no other
person or entity has any interest whatsoever in said shares and that there are
no options or similar agreements, oral or written, whereby any person or entity
has the right to acquire any of said shares or any interest therein.
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4.02 Shareholder acknowledges and agrees that (i) the ATI
Stock being received hereunder has not been registered under the Securities Act
of 1933 ("Securities Act") or any state securities laws and are issued in
reliance upon certain provisions of federal and state securities laws exempting
said shares from such registration, (ii) there are substantial restrictions on
the sale of the shares acquired hereunder and that the shares may be transferred
only in accordance with the provisions of this Paragraph, and (iii) each
certificate representing the shares issued hereunder and any other securities
issued in respect of the shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event shall (unless otherwise
permitted or unless the shares have been registered under the Securities Act) be
stamped or otherwise imprinted with a legend in substantially the following form
in addition to any legends required under state securities laws:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THEY MAY
NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
Shareholder acknowledges and agrees that the shares may not be
transferred without (i) registration under the Securities Act, (ii) the receipt
by ATI of an opinion of counsel acceptable to ATI that such transfer is exempt
from the registration provisions of the Securities Act and applicable state
securities laws, or (iii) the receipt by ATI of a "no-action" letter from the
Securities and Exchange Commission ("SEC") and any applicable state agency that
said transfer will not violate the Securities Act and applicable state
securities laws.
4.03 ATI acknowledges and agrees that (i) The Nurescell Stock
being received hereunder has not been registered under the Securities Act or any
state securities laws and was issued in reliance upon certain provisions of
federal and state securities laws exempting said shares from registration, (ii)
there are substantial restrictions on the sale of The Nurescell Stock acquired
hereunder and that The Nurescell Stock may be transferred only in accordance
with the provisions of this Paragraph, and (iii) each certificate representing
The Nurescell Stock and any other securities issued in respect of The Nurescell
Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event shall (unless otherwise permitted or unless the
shares have been registered under the Securities Act) be stamped or otherwise
imprinted with a legend substantially in the following form (in addition to any
legend required under applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THEY MAY
NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
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ATI acknowledges and agrees that The Nurescell Stock may not be
transferred without (i) registration under the Securities Act, (ii) the receipt
by Nurescell of an opinion of counsel acceptable to Nurescell that such transfer
is exempt from the registration provisions of the Securities Act and applicable
state securities laws, or (iii) the receipt by Nurescell of a "no- action"
letter from the SEC and any applicable state agency that said transfer will not
violate the Securities Act and applicable state securities laws.
4.04 The sale of the ATI Stock and The Nurescell Stock which
is the subject of this Agreement has not been qualified with the Commissioner or
Corporations of the State of California and the issuance of the securities or
the payment or receipt of any part of the consideration therefor prior to the
qualification is unlawful, unless the sale of securities is exempt from the
qualification by Section 25100, 25102, or 25105 of the California Corporation
Code. The right of all parties to this agreement are expressly conditioned upon
the qualification being obtained, unless the sale is so exempt.
5. Indemnification
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Each party hereto (the "Indemnifying Party") hereby agrees to
indemnify the other party hereto and the officers, directors, affiliates,
employees, controlling persons, and agents of the other party ("Indemnitee") and
to hold Indemnitee harmless against and in respect of any losses, damages,
taxes, penalties or other additions to taxes, claims, actions or causes of
action, costs and expenses, including attorneys' and accountants' fees,
specifically excluding lost profit and consequential damages, collectively
referred to hereinafter as "Losses", incurred by any Indemnitee by reason of (a)
a breach of any representations or warranties made by the Indemnifying Party in
this Agreement, or (b) nonperformance (whether partial or total) of any
covenants or agreements made by the Indemnifying Party in this Agreement or any
agreement entered into pursuant hereto.
6. Miscellaneous
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6.01 Notices
All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of computer transmission)
to the parties at the following addresses (or at another address for a party as
shall be specified by like notice):
To Advanced Technology Advanced Technology Industries Inc.
Industries, Inc.: Xxxxxxxxxxxxx 00
Xxxxxx, Xxxxxxx D-10117
Facsimile No.: 011 49 302 017 7899
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With copy to: H. Xxx Xxxxxxx
Law Offices of H. Xxx Xxxxxxx
11900 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
To Shareholder: Xxxxx X. Xxxxxx Separate Property
Trust of September 1, 1987 (as amended and
restated as of March 21, 2001)
c/o Xxxxx Xxxxxx
0000 Xxx Xxx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile No.: ____________
6.02 Interpretation
The words "include", "includes" and "including", when used
herein, shall be deemed in each case to be followed by the words "without
limitation". The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
6.03 Counterparts and Facsimile Signatures
This Agreement may be executed in one or more counterparts and
by facsimile signature, all which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
6.04 Entire Agreement; Amendments
This Agreement and the exhibits hereto, and the documents and
instruments and other agreements among the parties hereto referenced herein
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
This Agreement may only be amended by an amendment in writing executed by the
parties hereto.
6.05 Assignments
Neither the rights nor obligations of any party hereunder may
be assigned without the prior written consent of the other party hereto,
provided that ATI may assign its respective rights and delegate its respective
obligations hereunder to any parent or subsidiary or successor entity that
acquires substantially all of the assets or stock of ATI by way of merger,
reorganization, recapitalization, or otherwise.
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6.06 Further Assurances
Shareholder and ATI hereby agree to take any further action or
execute such further instruments as may be necessary to effectuate the terms of
this Agreement.
6.07 Severability
In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void, or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provisions to
persons or circumstances will be interpreted reasonably so as to give effect to
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes intended by the void or unenforceable provision.
6.08 Other Remedies
Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party will be deemed cumulative with, and not
exclusive of, any other remedy conferred hereby, or by law or equity, upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
6.09 Governing Law; Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
The parties agree that the proper jurisdiction and venue for any action arising
under this Agreement is Orange County, California, and the parties irrevocably
consent to the jurisdiction and venue of the state and federal courts located in
Orange County, California concerning any action relating to or arising under
this Agreement.
6.10 Rules of Construction
The parties hereto agree that they have been represented by
counsel during the negotiation and execution of this Agreement and, therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
6.11 Specific Performance
The parties hereto agree that irreparable damages would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court having proper venue hereunder, this
being in addition to any other remedy to which they are entitled at law or in
equity.
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6.12 Publicity
All notices to third parties and all other publicity
concerning the transaction contemplated by this Agreement shall be jointly
planned and coordinated by and between the parties hereto. None of the parties
shall act unilaterally in this regard without the prior written approval of the
others, provided, however, this approval shall not be unreasonably withheld, and
further provided, that in the event the parties hereto do not arrive at an
agreement concerning the text of the publicity to be given by virtue of the
execution of this Agreement, ATI shall be authorized to disclose, if required by
applicable law, that it has purchased The Nurescell Stock hereunder and to
subsequently announce that said transaction has closed if the Closing occurs.
6.13 Attorneys' Fees and Costs
In the event of any action at law or in equity between the
parties hereto to enforce any of the provisions hereof, the unsuccessful party
or parties to such litigation shall pay to the successful party or parties all
costs and expenses, including actual attorneys' fees, incurred therein by such
successful party or parties and if such successful party or parties shall
recover judgment in any such action or proceeding, such costs, expenses and
attorneys' fees shall be included in and as part of such judgment. The
successful party shall be the party who is entitled to recover his or its costs
of suit, whether or not the suit proceeds to final judgment. A party not
entitled to recover his or its costs shall not recover attorneys' fees.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
"ATI": Advanced Technology Industries, Inc.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxx
Its V.P., Chief Financial Officer
"Shareholder" Xxxxx X. Xxxxxx Separate Property Trust of
September 1, 1987 (as amended and restated
as of March 21, 2001)
By: /s/ Xxxxx Xxxxxx TTEE
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Xxxxx Xxxxxx, as Trustee
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement ("Agreement"), made and entered into
as of the 16th day of April, 2001, by and between Advanced Technology,
Industries Inc., a Delaware corporation, ("ATI") and Xxxxx X. Xxxxxx Separate
Property Trust of September 1, 1987 (as amended and restated as of March 21,
2001) ("Shareholder") provides as follows:
SECTION I
DEFINITIONS
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Capitalized terms used in this Agreement and not defined elsewhere
herein shall have the meanings set forth below:
"ATI" means Advanced Technology Industries, Inc.
"ATI Stock" means the $.0001 par value ATI Stock of ATI.
"Commission" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Losses" means all losses, claims, damages, or liabilities and
reasonable expenses related thereto.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Shareholder" means the Xxxxx X. Xxxxxx Separate Property Trust of
September 1, 1987 (as amended and restated as of March 21, 2001), the
Shareholder as defined in the Agreement for Purchase of Stock executed
concurrently herewith by and between ATI and Shareholder.
"Shares" means the ATI Stock held by Shareholder, if any.
SECTION 2
PIGGYBACK REGISTRATION
----------------------
2.1 If at any time within five years from the effective date of this
Agreement ATI proposes to register any offering of shares of its capital stock
under the Securities Act, and if such registration is to be on a form of the
Commission that may include, or is at any time amended or changed to such a form
that may include, the Shares, ATI will provide written notice to Shareholder of
ATI's intention to register the offering at least thirty (30) days prior to the
filing of said registration statement.
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2.2 Unless objected to by any underwriter(s) participating in the sale
and distribution of ATI's securities covered by the registration statement
referred to in Section 2.1 hereof, ATI's notice shall give Shareholder the
opportunity to elect to include in the registration some of the Shares as
provided herein. Shareholder shall have thirty (30) days after receipt of ATI's
notice to notify ATI in writing of the number of Shares (the "Elected Shares")
which Shareholder elects to include in the offering. If the number of Elected
Shares that Shareholder requests to include in such registration exceeds the
number of shares permitted by any underwriter then Shareholder, and each other
selling shareholder who also has piggyback registration rights and has elected
to include shares of ATI Stock in the registration, shall be entitled to include
that number of shares of ATI Stock that bears the same ratio to the number of
shares permitted by the underwriter as the number of Elected Shares which
Shareholder requests to include bears to the aggregate number of shares that
Shareholder and any other selling shareholders request to include. The piggyback
registration rights provided by this Section 2.2 with respect to the Shares
shall not apply to offerings that are registered on Form X-0, Xxxx X-0, Form
SB-2, or successor forms thereto, for registering stock issued under business
combinations or employee plans.
2.3 The inclusion of Shares in registered offerings pursuant to this
Section 2 shall be upon the condition that Shareholder agrees that it will not
sell any of its Elected Shares for a period of 180 days after the effective date
of the registration.
2.4 ATI shall give Shareholder the right to participate in each
registration pursuant to this Section 2 without limitation as to number of
registrations.
2.5 In the case of any public offering of securities of ATI pursuant to
which Shareholder exercises registration rights under this Section 2, ATI shall
designate any underwriters in connection therewith.
SECTION 3
CONDITIONS TO PARTICIPATION
---------------------------
To include any Shares in a registration under Section 2 hereof,
Shareholder shall:
(a) cooperate with ATI in preparing the registration statement and
execute such agreements as ATI or any underwriter may deem reasonably necessary,
including, but not limited to, an agreement concerning distribution of the
shares to be registered to insure that the distribution will not adversely
impact the market price of said shares;
(b) promptly supply ATI with such information, documents,
representations and warranties as any underwriter may deem reasonably necessary
in connection with such registration; and
(c) as requested by ATI or any underwriter, agree in writing not to
sell or transfer any ATI Stock not included in such registration for a period of
fifteen (15) days prior to and one hundred eighty (180) days after the effective
date of the registration without the underwriter's consent, but Shareholder
shall not be required to make such agreement unless the other holders of ATI
Stock included in the offering covered by such registration shall similarly
agree.
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SECTION 4
OPINION OF COUNSEL
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ATI shall have no obligation under Section 2 hereof to register any
Shares if ATI delivers to Shareholder an opinion of counsel reasonably
satisfactory to Shareholder to the effect that the proposed sale or disposition
of the Shares for which registration was requested does not require registration
under the Securities Act for a sale or disposition in a single public
transaction. ATI hereby agrees to indemnify Shareholder against, and to hold it
harmless from, all Losses, including liability for rescission, that it may incur
under the Securities Act or otherwise by reason of it proceeding in accordance
with such opinion of counsel.
SECTION 5
REGISTRATION PROCEDURES
-----------------------
If and whenever ATI is obligated by the provisions of this Agreement to
effect the registration of any offering of Shares under the Securities Act, as
expeditiously as possible ATI will, or will use its best efforts to, as the case
may be:
(a) Prepare and file with the Commission a registration statement with
respect to such Shares and cause such registration statement to become
effective; provided, however, that before filing a registration statement or
prospectus or any amendments or supplements thereto, ATI shall furnish to
Shareholder and its counsel selected pursuant to Section 6.2 hereof copies of
all such documents proposed to be filed, which documents will be the subject of
review of Shareholder and its counsel; provided, however, that, although any
comments or requested revisions submitted by Shareholder or its counsel will be
considered by ATI, such comments or revisions shall be or shall not be
integrated into such registration statement or prospectus in the sole and
exclusive discretion of ATI and its securities counsel.
(b) Prepare and file with the Commission such amendments and
supplements to the registration statement and the prospectus used in connection
therewith as may be necessary to keep the registration statement effective until
the earlier of the sale of all Shares covered thereby or the expiration of a
period of two hundred seventy (270) days after its effective date, and comply
with the provisions of the Securities Act with respect to the disposition of all
shares of ATI Stock covered by the registration statement; provided, however,
that if maintaining the effectiveness of the registration statement would
require the filing of a post-effective amendment including new financial
statements (other than financial statements which ATI would be required to
include in a current report on Form 10-Q or Form 10-QSB), ATI shall be obligated
to use its best efforts to maintain the effectiveness of the registration
statement for only six (6) months in the case of the first registration filed
hereunder, and ninety (90) days in the case of any other registration filed
hereunder. In the event that any Shares included in a registration statement
subject to this Agreement remain unsold at the end of the period during which
ATI is obligated to use its best efforts to maintain the effectiveness of the
registration statement, ATI, if and when a further amendment or supplement would
be required to comply with Section 9 of the Securities Act, may file a
post-effective amendment to the registration statement for the purpose of
removing such Shares from registered status.
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(c) Furnish to Shareholder as many copies of prospectuses, including
preliminary prospectuses, in conformity with the requirements of the Securities
Act, and other related documents, as Shareholder may reasonably request.
(d) Register or qualify the Shares covered by the registration
statement under the securities or blue sky laws of such jurisdictions as
Shareholder shall reasonably request, and do any acts that may be reasonably
necessary or advisable to enable Shareholder to consummate the disposition in
such jurisdictions of the Shares; provided, however, that ATI shall not be
obligated, by reason thereof, to qualify as a foreign corporation or file any
general consent to service of process under the laws of any such jurisdiction or
subject itself to taxation as doing business in any such jurisdiction.
(e) Furnish to Shareholder an opinion of counsel for ATI, which opinion
shall be reasonably acceptable to Shareholder and the counsel selected pursuant
to Section 6.2 hereof, to the effect (i) that a registration statement covering
the offering of the Shares has been filed with the Commission under the
Securities Acts and has been made effective by order of the Commission, (ii)
that a prospectus complying as to form with the requirements of the Securities
Act is available for delivery, (iii) that no stop order has been issued by the
Commission suspending the effectiveness of such registration statement and (iv)
that, to the best of such counsel's knowledge, no proceedings for the issuance
of such a stop order are threatened or contemplated, and that the securities
included in the offering covered by such registration statement have been
registered or qualified, or exempted from such registration or qualification,
under the securities or blue sky laws of each state in which ATI has been
required to register or qualify such shares under Section 5(d) hereof. In giving
such opinion, counsel for ATI shall be entitled to rely upon the opinion of
counsel for any underwriter.
(f) Notify Shareholder promptly after ATI shall receive notice that (i)
any registration statement, supplement or amendment has become effective, (ii)
any registration statement is required to be amended or supplemented, or (iii)
any stop order with respect thereto has been issued.
(g) Enter into such agreements, including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings, and take
all other actions in connection therewith, including actions reasonably
requested by any underwriter or Shareholder, in order to expedite or facilitate
the disposition of the Shares. ATI's obligations pursuant to the preceding
sentence can include without limitation, ATI: (i) making representations and
warranties to the underwriters with respect to the business of ATI, the
registration statement, the prospectus and the documents, if any, incorporated
or deemed to be incorporated by reference in the registration statement, in each
case in form, substance and scope as are customarily made by issuers to
underwriters in underwritten secondary offerings and confirm such matters if and
when requested; (ii) obtaining opinions of counsel to ATI and updates thereof,
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which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the underwriters, covering the matters customarily covered in
opinions requested in underwritten offerings; (iii) obtaining "cold comfort"
letters and updates thereof from the independent certified public accountants of
ATI (and, if necessary, any other independent certified public accountants of
any subsidiary of ATI or of any business acquired by ATI for which financial
statements and financial data are or are required to be included in the
registration statement) addressed to the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with underwritten offerings; (iv)
agreeing in any underwriting agreement to the indemnification and contribution
provisions and procedures of Sections 7 through 11 hereof (or such other less
favorable provisions and procedures for the underwriters that are acceptable to
the underwriters) with respect to all parties to be indemnified pursuant to said
Sections; and (v) delivering such documents and certificates as may be requested
by an underwriter to evidence the continued validity of the representations and
warranties made pursuant to clause (i) of this Section 5(g), and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by ATI.
(h) Make available for inspection, by any underwriter and any counsel
or accountant retained by the underwriter, financial and other records,
pertinent corporate documents and properties of ATI, and cause the officers,
directors and employees of ATI to supply information reasonably requested by any
underwriter, counsel or accountant in connection with such registration
statement; provided, however, that any records, information or documents that
are designated by ATI in writing as confidential shall be kept confidential by
such persons unless (i) disclosure of such records, information or documents is
required by court or administrative order, (ii) disclosure of such records,
information, or documents, in the opinion of counsel to such person, is required
by law, including, without limitation, pursuant to the requirements of the
Securities Act, or (iii) such records, information, or documents are in the
public domain or otherwise publicly available.
SECTION 6
REGISTRATION EXPENSES; COUNSEL FOR SHAREHOLDER
----------------------------------------------
The costs and expenses (other than underwriting discounts or
commissions and such fees for counsel, printing, registration and other fees as
state securities officials may require that Shareholder and other selling
shareholders pay) of all registrations and qualifications of Shares under
Section 2 hereof shall be paid by ATI, including, without limitation, all
registration and filing fees, printing expenses, costs of special audits
incident to or required by any registration, fees and disbursements of counsel
for ATI and the fees and disbursements of one special counsel acting for
Shareholder and selected pursuant to Section 6.2 hereof, except that all such
expenses in connection with any amendment or supplement to the registration
statement or the prospectus used in connection therewith required to be filed
more than two hundred seventy (270) days after the date on which such
registration statement becomes effective under the Securities Act because
Shareholder has not effected the disposition of all Shares covered by such
registration statement shall be borne pro rata by Shareholder and any other
selling shareholders benefitted thereby.
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SECTION 7
INDEMNIFICATION BY ATI
----------------------
In the event of any registration under the Securities Act of any
offering of Shares, ATI hereby agrees to indemnify and hold harmless Shareholder
and each person (including each underwriter, and each other person, if any, who
controls such underwriter) who participates in the offering of such Shares
against any Losses, joint or several, to which Shareholder or such participating
person may become subject under the Securities Act or otherwise, insofar as such
Losses (or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained, on
the effective date thereof, in any registration statement under which Shares
were registered under the Securities Act, in any preliminary prospectus or final
prospectus contained therein, or in any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading and will reimburse Shareholder and each such
participating person for any legal or other expenses reasonably incurred by
Shareholder or such participating person in connection with investigating or
defending any such Loss: provided, however, that, ATI will not be liable in any
such case to the extent that any such Loss arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, said preliminary or final prospectus or
said amendment or supplement in reliance upon and in conformity with written
information furnished by Shareholder or such participating person, as the case
may be, specifically for use in the preparation thereof. ATI shall also
indemnify underwriters, selling brokers, dealers, managers, and similar
securities industry professionals participating in the distribution, their
officers, directors, agents, and employees and each person who controls such
persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of Shareholder.
SECTION 8
INDEMNIFICATION BY SHAREHOLDER
------------------------------
In the event of any registration under the Securities Act of any
offering of Shares, Shareholder hereby agrees to indemnify and hold harmless ATI
and each person who controls ATI within the meaning of the Securities Act and
each other person (including each underwriter, and each other person, if any,
who controls such underwriter, and each other selling shareholder, and each
other person, if any, who controls such selling shareholder) who participates in
the offering of such Shares, against any Losses, joint or several, to which ATI,
other selling shareholder, or controlling person or participating person may
become subject under the Securities Act or otherwise, insofar as such Losses (or
proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained therein, on
the effective date thereof, in any registration statement under which an
offering of such Shares was registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse ATI, other selling shareholders, and each such controlling person or
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participating person for any legal or other expenses reasonably incurred by ATI,
other selling shareholders, or such controlling person or participating person
in connection with investigating or defending any such Loss or proceeding:
provided, however, that Shareholder will be liable in any such case to the
extent, and only to the extent, that any such Loss arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, said preliminary or final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished by Shareholder specifically for use in the
preparation thereof. Notwithstanding the foregoing, the liability of Shareholder
under this Section 8 shall be limited to an amount equal to the price of the
Shares sold by Shareholder in connection with such registration unless such
liability arises out of acts based on willful conduct of Shareholder.
SECTION 9
CONDUCT OF INDEMNIFICATION PROCEEDINGS
--------------------------------------
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or any claim shall be asserted against any person
entitled to indemnity hereunder (an "indemnified party") such indemnified party
shall promptly notify the person from which such indemnity is sought (the
"indemnifying party") in writing, and the indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the indemnified party and the payment of all fees and expenses incurred in
connection with the defense thereof. Any such indemnified party shall have the
right to employ separate counsel in any such action, claim, or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, or (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim, or
proceeding, or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the indemnifying party and
that the assertion of such defenses would create a conflict of interest such
that counsel employed by the indemnifying party could not faithfully represent
the indemnified party in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action, claim, or proceeding on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action, claim, or proceeding,
or separate but substantially similar or related actions, claims, or proceedings
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any time
for all such indemnified parties, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim, or proceeding, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels. The
indemnifying party shall not be liable for any settlement of any such action or
proceeding effected without its written consent.
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SECTION 10
CONTRIBUTION
------------
If the indemnification provided for in this Agreement is unavailable to
an indemnified party under Section 7 or Section 8 hereof (other than by reason
of exceptions provided in such Sections) in respect of any Losses, then each
applicable indemnifying party in lieu of indemnifying such indemnified party
shall contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions, statements, or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. The relative fault of such
indemnifying party and the indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue
statement or alleged untrue statement of a material fact, omission, or alleged
omission of a material fact, has been taken or made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
party's relative intent, knowledge, access to information, and opportunity to
correct or prevent such action, statement, or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 8 hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with any action, suit,
claim, investigation, or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 10, Shareholder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares sold by it exceeds the amount of any damages which
such indemnifying party 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
"ATI": Advanced Technology Industries, Inc.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxx
Its V.P., Chief Financial Officer
"Shareholder" Xxxxx X. Xxxxxx Separate Property Trust of
September 1, 1987 (as amended and restated
as of March 21, 2001)
By: /s/ Xxxxx Xxxxxx TTEE
------------------------------------------
Xxxxx Xxxxxx, as Trustee
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