Exhibit 7.2
AGREEMENT FOR PURCHASE OF STOCK
-------------------------------
This Agreement ("Agreement"), made and entered into as of the 23rd of
August, 2000 by and between Advanced Technology, Industries Inc., a Delaware
corporation, ("ATI") and Xxxxxx Xxxxxx as Trustee of the Xxxxxx Xxxxxx Separate
Property Revocable Living Trust dated June 30, 1998 ("Xxxxxx") and Xxxxxx Xxxxxx
as Trustee of the Xxxxxx Xxxxxx Separate Property Revocable Living Trust dated
June 30, 1998 ("Xxxxxx") hereinafter collectively referred to as "Xxxxxx"
provides as follows:
RECITALS
X. Xxxxxx is the owner of 3,500,000 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."
B. ATI is a publicly owned corporation with authorized capital of fifty
million (50,000,000) shares of $.0001 par value common stock, of which
15,285,911 shares were issued and outstanding as of June 30, 2000, and one
million (1,000,000) shares of $.001 par value preferred stock, none of which are
outstanding.
C. ATI desires to purchase, and Xxxxxx 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.
------------------
Xxxxxx agrees to sell, transfer, and convey to ATI The Nurescell Stock
in consideration for the receipt of 3,500,000 shares of the $.0001 par value
common stock of ATI hereinafter referred as the "ATI Stock".
2. The Closing.
------------
The Closing hereunder ("Closing") will take place at the Law Offices of
H. Xxx Xxxxxxx, a Professional Corporation, 00000 Xxxx Xxxxxxx Xxxx., Xxxxx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 on _________________, 2000 at 9:30 A.M. or
such other time and place as may be mutually agreed upon between the parties.
The Closing shall take place simultaneously with and shall be contingent upon
the Closing of that certain transaction by and between Nurescell, Nurescell AG,
and ATI involving the acquisition of certain technology by Nurescell AG from
Nurescell.
3. Warranties and Representations of Xxxxxx.
----------------------------------------
Xxxxxx hereby makes the following representations and warranties to
ATI, its successors and assigns, all of which warranties and representations
shall be deemed to have been made at the Closing by Xxxxxx without any further
writing, and shall survive the Closing hereunder;
3.01. Nurescell has authorized capital of fifty million
(50,000,000) shares of $.0001 par value common stock. As of the date of this
Agreement, there were 15,583,288 shares outstanding. In the event that the
outstanding shares of Nurescell shall increase prior to Closing, Xxxxxx shall
inform ATI in writing. Except as disclosed in the most recent annual or
quarterly reports filed by Nurescell pursuant to Section 13 of the Securities
Exchange Act of 1934 ("The 1934 Act") there are no agreements, warrants,
options, or commitments by Nurescell for the issuance of any additional shares
of Nurescell stock.
3.02. Xxxxxx has, and will have at the Closing, 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 or will
at the Closing be 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 all free and clear of any and all encumbrances, liens,
restrictions, options, agreements, and conditions except as set forth in Section
5.03 hereof.
3.03. All of The Nurescell Stock was issued to Xxxxxx by
Nurescell for full and adequate consideration and Xxxxxx has not been notified
by Nurescell or any agent, employee, officer, or representative thereof, or any
other person, that Nurescell or any other person is contending or intends to
contend that any of The Nurescell Stock was issued for inadequate or invalid
consideration or that said shares are invalid or defective in any manner
whatsoever.
3.04. The transfer of The Nurescell Stock by Xxxxxx will not
constitute a default under any indenture, loan, credit agreement or any other
agreement, lease, or instrument to which Xxxxxx or Nurescell is a party. Xxxxxx
is entitled to transfer and convey The Nurescell Stock without the consent of
any other party.
3.05. There are no outstanding judgements against Xxxxxx or
any claims of any kind, actions, proceedings, disputes, or audits pending, or,
to the knowledge of Xxxxxx, threatened or affecting Xxxxxx, whether for unpaid
taxes or otherwise. There are no outstanding and unpaid tax deficiency
statements, notices of assessments, or other demands for payment of taxes, or
notices of assessments or deficiency against Xxxxxx. Xxxxxx is not charged with
or under investigation in respect to any alleged violation of any provisions of
any federal, state, or local law, or administrative ruling or regulation.
3.06. Xxxxxx has no asserted or unasserted claims against
Nurescell or any of its assets for severance benefits, unpaid wages or salary,
fringe benefits, loans, damages, or any other claims of any nature whatsoever.
4. Representation and Warranties of ATI.
------------------------------------
ATI hereby makes the following representations and warranties to
Xxxxxx, his successors and assigns, all of which warranties and representations
shall be deemed to have been made at the Closing by ATI without any further
writing, and shall survive the Closing hereunder.:
4.01 The ATI Stock delivered hereunder shall be validly issued
and outstanding and is fully paid and non-assessable.
4.02 ATI has, and will have at the Closing, the full right and
power to sell and transfer to Xxxxxx the ATI Shares agreed to be transferred
hereunder free and clear of any statutory, contractual, or other limitation, and
none of said shares are or will be at the Closing subject to any lien, pledge,
hypothecation, or any encumbrance whatsoever. The sale provided for herein will
vest directly in Xxxxxx title to the ATI Shares, free and clear of any and all
encumbrances, liens, restrictions, options, agreements, and conditions except as
set forth in Paragraph 5.02 hereof.
4.03 ATI has 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. As of the date of this Agreement there were
15,285,911 shares of common stock outstanding and no preferred stock
outstanding. In the event that the outstanding shares of ATI shall increase
prior to Closing, ATI shall inform Xxxxxx in writing. Except as disclosed in the
most recent annual or quarterly reports filed by ATI pursuant to Section 13 of
The 1934 Act there are no agreements, warrants, options, or commitments by ATI
for the issuance of any additional shares of ATI stock.
5. Restrictions Upon Shares-Investment Representation.
--------------------------------------------------
5.01 Xxxxxx warrants and represents that Xxxxxx is acquiring
the ATI Shares and the Earn Out Shares, if any, for Joseph'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. Xxxxxx 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.
5.02 Xxxxxx acknowledges and agrees that, (i) the ATI Shares
and the Earn Out Shares, if any, being received hereunder have 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 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 LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
Xxxxxx 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.
5.03. 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."
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.
6. Earn Out Shares.
---------------
6.01 Additional shares of ATI $.0001 par value common stock
(hereinafter referred to as the "Earn Out Shares") shall be issued to Xxxxxx up
to a total of 2,000,000 additional shares to the extent that any of the
following levels of Gross Revenues are achieved by Nurescell AG in any of the
five full calender years following the date of this Agreement:
Gross Revenues Additional Shares
-------------- -----------------
Over $5 Million but less than
$6 Million 200,000
Over $6 Million but less than
$7.5 Million 400,000
Over $7.5 Million but less than
$10 Million 666,000
Over $10 Million 1,000,000
6.02. For purposes of this Paragraph the term "Gross Revenue"
shall means all revenues derived by Nurescell AG from operations, including the
sale of products, licensing revenues, or any other operational revenue but
excluding any extraordinary items including, but not limited to, (i) the sale of
assets other than in the ordinary course of business, or (ii) capital
transactions involving the issuance of stock or other securities.
6.03 Upon the issuance of any of the Earn Out Shares, said
shares shall be subject to the provisions of this Agreement including, but not
limited to, the provisions of Paragraphs 4, 5 and 7 hereof.
7. Registration-Lock Up of Shares.
------------------------------
Simultaneously with the execution of this Agreement, the parties shall
execute the Registration Rights Agreement in the form attached hereto as Exhibit
"A" providing for the registration of the ATI Shares and the Earn Out Shares.
7.01 Xxxxxx shall have the right to register and/or sell not
to exceed six hundred thousand (600,000) shares after one (1) year from the date
of this Agreement and an additional six hundred thousand (600,000) shares each
year thereafter pursuant to the Registration Rights Agreement which is attached
hereto as Exhibit "A" and incorporated by this reference as though fully set
forth herein.
7.02 Except for the rights of Xxxxxx to have shares registered
and to sell said shares pursuant to Paragraph 7.01 hereof, Xxxxxx shall not
sell, transfer, convey, or assign any interest in the ATI Stock or the Earn-Out
Shares until the expiration of six (6) years from the date of this Agreement
unless the transferee expressly assumes in writing all of the obligations and
duties of Xxxxxx under this Agreement, the Registration Rights Agreement, and
the Irrevocable Proxy, including, but not limited to, the restriction against
transfer of shares except pursuant to Paragraph 7.01 as provided herein. The
share certificates of Xxxxxx shall contain the following legend
"THE TRANSFER, CONVEYANCE, OR ASSIGNMENT OF THE SHARES
EVIDENCED BY THIS CERTIFICATE IS RESTRICTED FOR A PERIOD
ENDING AUGUST 23, 2006 PURSUANT TO AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER DATED AUGUST 23, 2000."
8. Irrevocable Proxy.
-----------------
Simultaneously with the execution of this Agreement and as additional
consideration for the covenants and agreements contained herein, Xxxxxx shall
execute the Irrevocable Proxy in the form attached hereto as Exhibit "B".
9. Closing Documents.
-----------------
9.01 At the Closing, ATI shall deliver to Xxxxxx the following
documents:
(a) A certificate for 3,500,000 shares of the $.0001
par value common stock of ATI.
(b) The executed Registration Rights Agreement in the
form attached hereto as Exhibit "A".
(c) The executed Irrevocable Proxy in the form
attached hereto as Exhibit "B".
9.02 At the Closing, Xxxxxx shall deliver the following
documents to ATI:
(a) Shares Certificates of Nurescell totaling
3,500,000 shares together with properly executed Stock Powers
Separate From Certificate executed by Xxxxxx and any other
person in whose name such shares may stand.
(b) A resolution of the Board of Directors of
Nurescell executed by all of the directors thereof stating The
Nurescell Stock is validly issued and outstanding and fully
paid, that The Nurescell Stock or any portion thereof has not
been issued for insufficient consideration, and that there is
no claim by Nurescell that may affect the validity of said
shares. Said resolution shall otherwise be in a form
acceptable to ATI.
(c) An executed Registration Rights Agreement in the
form attached as Exhibit "A" hereto.
(d) An executed Irrevocable Proxy in the form
attached as Exhibit "B" hereto.
10. Non-Interference.
----------------
Nurescell and Nurescell AG have executed an Investment Agreement which
contains certain agreements therein relating to the corporate governance of
Nurescell and Nurescell AG pending the receipt of full payment of the license
fee in the amount of $1,000,000 under that certain License Agreement entered
into between said parties simultaneously with the execution of the Investment
Agreement. Xxxxxx acknowledges that Xxxxxx is familiar with the provisions of
those agreements in that regard and agrees that Xxxxxx will not take any action
directly or indirectly or solicit, advise, assist or make any recommendation to
any other person to take any action directly or indirectly which is inconsistent
with the provisions of those agreements in that regard including, but not
limited to, the voting of stock of Nurescell or Nurescell AG.
11. Indemnification.
---------------
11.01 Xxxxxx (the "Indemnifying Party") hereby agrees to
indemnify ATI and its successors and assigns and the officers, directors,
affiliates, employees, controlling persons, and agents of ATI ("Indemnitee") and
to hold each 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 Xxxxxx in this Agreement,
or (b) nonperformance (whether partial or total) of any covenants or agreements
made by Xxxxxx in this Agreement or any agreement entered into pursuant hereto.
11.02 Without limiting the generality of the foregoing, in the
event of any claim for indemnification hereunder resulting in the commencement
of legal proceedings by a third party, the Indemnitee shall give notice to the
Indemnifying Party no later than ten (10) days prior to the time any response to
the asserted claim is required, if possible. In the event of any such claim for
indemnification resulting from or in connection with any third-party claim or
legal proceeding, the Indemnifying Party may assume the defense thereof;
provided, however, that no settlement may be made without the prior written
consent of the Indemnitee. If the Indemnifying Party assumes the defense of any
such claim or legal proceeding, the Indemnifying Party shall be entitled to
select counsel and take all steps necessary in the settlement or defense
thereof, provided, however, that the Indemnitee may, at its own expense,
participate in any such proceeding with counsel of its choice. The Indemnitee
may not compromise or settle such claim or proceeding without the prior written
consent of the Indemnifying Party unless (a) the Indemnifying Party is not
defending in good faith such claim or proceeding, (b) the continued defense of
such claim or proceedings is materially prejudicial to the Indemnitee, or (c)
the Indemnitee believes in good faith that the Indemnifying Party will be unable
to pay the amount of such settlement. If the Indemnifying Party does not assume
the defense of any such claim or litigation in such manner as it may deem
appropriate, including, but not limited to, settling such claim or litigation
(after giving notice of the same to the Indemnifying Party), the Indemnifying
Party will promptly indemnify the Indemnitee in accordance with the provisions
of this Paragraph, provided, however, that in the event the Indemnitee intends
to settle a claim or litigation without the Indemnifying Party's consent, the
Indemnitee shall notify the Indemnifying Party of such intent in writing. Within
five (5) business days of receipt of such notice, the Indemnifying Party shall
deliver to the Indemnitee its written objection, if any, to the amount of such
settlement specifying the amount to which it objects. The Indemnifying Party
shall only be liable for that portion of the loss resulting from any settlement
that the Indemnifying Party does not reasonably dispute in good faith in its
written objection.
12. Miscellaneous
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12.01 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
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 Xxxxxx: 0 Xxx Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
12.02 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.
12.03 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.
12.04 Entire Agreement
----------------
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.
12.05 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.
12.06 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.
12.07 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.
12.08 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 irrevocably consent to the jurisdiction and venue of the state and
federal courts located in California concerning any action relating to this
Agreement.
12.09 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.
12.10 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.
12.11 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 that it has
entered into this Agreement to purchase The Nurescell Stock hereunder and to
subsequently announce that said transaction has closed if the Closing occurs.
12.12 Attorneys' Fees and Cost
------------------------
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.
[SIGNATURE PAGES FOLLOW]
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., CFO
"Xxxxxx" /s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx as Trustee of the Xxxxxx
Xxxxxx Separate Property Revocable
Living Trust dated June 30, 1998
/s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx as Trustee of the Xxxxxx
Xxxxxx Separate Property Revocable Living
Trust dated June 30, 1998
Exhibit "A"
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (the "Agreement") is entered into as
of the 23rd of August, 2000, by and between Advanced Technology Industries,
Inc., a Delaware corporation (the "Company"), Xxxxxx Xxxxxx as Trustee of the
Xxxxxx Xxxxxx Separate Property Revocable Living Trust dated June 30, 1998
("Xxxxxx") and Xxxxxx Xxxxxx as Trustee of the Xxxxxx Xxxxxx Separate Property
Revocable Living Trust dated June 30, 1998 ("Xxxxxx") hereinafter collectively
referred to as "Xxxxxx" provides as follows:
RECITALS
A. An Agreement For Purchase of Stock is being entered into by and
between Company and Xxxxxx simultaneously herewith whereby Xxxxxx is acquiring
certain shares of the Company stock referred to therein as the ATI Stock and the
Earn Out Shares, which are hereinafter collectively referred to as the "Shares".
B. In connection with the Agreement For Purchase of Stock, the Company
desires to grant certain registration rights with respect to the Shares.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
SECTION 1
DEFINITIONS
-----------
Capitalized terms used in this Agreement and not defined elsewhere
herein shall have the meanings set forth below:
"Commission" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act.
"Common Stock" means the $.0001 par value common stock of Company.
"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.
SECTION 2
DEMAND REGISTRATION
-------------------
2.1 At any time commencing with the first anniversary date of this
Agreement and during a period of six years from the date hereof, upon the
written demand of Xxxxxx, the Company shall prepare and file a registration
statement under the Securities Act covering an offering of such number of Shares
as shall have been requested to be registered by Xxxxxx in such demand;
provided, however, that (i) the Company shall be obligated to effect a
registration pursuant to this Section 2.1 for no more than 600,000 shares in
each twelve (12) month period and no more than one (1) registration during each
twelve (12) month period.
2.2 The Company shall proceed as expeditiously as possible after
receipt of a demand pursuant to Section 2.1 hereof to file a registration
statement and use its best efforts to cause such registration statement to
become effective within one hundred twenty (120) days after the receipt of such
written demand, or, in the case of a demand made within sixty (60) days prior to
the end of the Company's then-fiscal year, within two hundred ten (210) days
after the receipt of such written demand. The Company shall select any
underwriter(s) to be engaged in connection with any such registration.
SECTION 3
PIGGYBACK REGISTRATION
----------------------
3.1 If at any time within six (6) years from the date of this Agreement
the Company 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, the Company will provide written notice to Xxxxxx
of the Company's intention to register the offering at least thirty (30) days
prior to the filing of said registration statement.
3.2 Unless objected to by any underwriter(s) participating in the sale
and distribution of the Company's securities covered by the registration
statement referred to in Section 3.1 hereof, the Company's notice shall give
Xxxxxx the opportunity to elect to include in the registration some of the
Shares as provided herein. Xxxxxx shall have thirty (30) days after receipt of
the Company's notice to notify the Company in writing of the number of Shares
(the "Elected Shares") which Xxxxxx elects to include in the offering. If the
number of Elected Shares that Xxxxxx requests to include in such registration
exceeds the number of shares permitted by any underwriter, then Xxxxxx, and each
other selling shareholder who also has piggyback registration rights and has
elected to include shares of Common Stock in the registration, shall be entitled
to include that number of shares of Common Stock that bears the same ratio to
the number of shares permitted by the underwriter as the number of Elected
Shares which Xxxxxx requests to include bears to the aggregate number of shares
that Xxxxxx and any other selling shareholders request to include. The piggyback
registration rights provided by this Section 3.2 with respect to the Shares
shall not apply to offerings that are registered on Form X-0, Xxxx X-0, or
successor forms thereto, for registering stock issued under business
combinations or employee plans.
3.3 The inclusion of Shares in registered offerings pursuant to this
Section 3 shall be upon the condition that Xxxxxx xxxxx its Elected Shares to
any underwriter at the same price and on substantially the same terms and
conditions as the Company.
3.4 The Company shall give Xxxxxx the right to participate in each
registration pursuant to this Section 3 without limitation as to number of
registrations, provided, however, that notwithstanding anything to the contrary
contained in this Agreement, Xxxxxx shall not have the right to demand
registration for more than 600,000 of the Shares in any twelve (12) month
period.
3.5 In the case of any public offering of securities of the Company
pursuant to which Xxxxxx exercises registration rights under this Section 3, the
Company shall designate any underwriters in connection therewith.
SECTION 4
CONDITIONS TO PARTICIPATION
---------------------------
4.1 To include any Shares in a registration under Section 2 or Section
3 hereof, Xxxxxx shall:
(a) cooperate with the Company in preparing the registration
statement and execute such agreements as Company 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 the Company with such information,
documents, representations and warranties as any underwriter may deem reasonably
necessary in connection with such registration; and
(c) as requested by the Company or any underwriter, agree in
writing not to sell or transfer any Common 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 Xxxxxx shall not be required to make such agreement
unless the other holders of Common Stock included in the offering covered by
such registration shall similarly agree.
SECTION 5
OPINION OF COUNSEL
------------------
The Company shall have no obligation under Section 2 or Section 3
hereof to register any Shares if the Company delivers to Xxxxxx an opinion of
counsel reasonably satisfactory to Xxxxxx 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. The Company hereby agrees to indemnify Xxxxxx
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 6
REGISTRATION PROCEDURES
-----------------------
If and whenever the Company 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 the Company 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, the Company shall
furnish to Xxxxxx and its counsel selected pursuant to Section 7.2 hereof copies
of all such documents proposed to be filed, which documents will be the subject
of review of Xxxxxx and its counsel and, in the event of a demand registration
which is not accompanied by a registration of Common Stock for sale by the
Company, the Company shall not file any registration statement or prospectus or
any amendments or supplements thereto to which Xxxxxx or its counsel shall
reasonably object on a timely basis.
(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 Common 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 the Company would be required
to include in a current report on Form 10-Q or Form 10-QSB), the Company 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 the Company is obligated to use its best efforts to maintain
the effectiveness of the registration statement, the Company, if and when a
further amendment or supplement would be required to comply with Section 10 of
the Securities Act, may file a post-effective amendment to the registration
statement for the purpose of removing such Shares from registered status.
(c) Furnish to Xxxxxx as many copies of prospectuses,
including preliminary prospectuses, in conformity with the requirements of the
Securities Act, and other related documents, as Xxxxxx 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 Xxxxxx
shall reasonably request, and do any acts that may be reasonably necessary or
advisable to enable Xxxxxx to consummate the disposition in such jurisdictions
of the Shares; provided, however, that the Company 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 Xxxxxx an opinion of counsel for the Company,
which opinion shall be reasonably acceptable to Xxxxxx and the counsel selected
pursuant to Section 7.2 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 the Company has
been required to register or qualify such shares under Section 6(d) hereof. In
giving such opinion, counsel for the Company shall be entitled to rely upon the
opinion of counsel for any underwriter.
(f) Notify Xxxxxx promptly after the Company 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 Xxxxxx, in order to expedite or
facilitate the disposition of the Shares. The Company's obligations pursuant to
the preceding sentence can include without limitation, the Company: (i) making
representations and warranties to the underwriters with respect to the business
of the Company, 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 the Company
and updates thereof, 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 the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company 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 9 through 12 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 6(g), and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
(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 the Company, and cause the
officers, directors and employees of the Company 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 the Company 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 7
REGISTRATION EXPENSES; COUNSEL FOR XXXXXX
-----------------------------------------
7.1 The costs and expenses in connection with the registrations and
qualifications of Shares under Section 2 hereof shall be paid by Xxxxxx. 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 Xxxxxx and other selling shareholders pay) of all
registrations and qualifications of Shares under Section 3 hereof shall be paid
by the Company, 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 the Company and the fees and
disbursements of one special counsel acting for Xxxxxx and selected pursuant to
Section 7.2 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 Xxxxxx has not effected the disposition of all Shares
covered by such registration statement shall be borne pro rata by Xxxxxx and any
other selling shareholders benefitted thereby.
7.2 Xxxxxx may select the counsel to act on his behalf in connection
with a registration, under this Agreement, provided that such counsel is
reasonably acceptable to the Company.
SECTION 8
RULE 144
--------
The Company shall file the reports required under the Securities Act
and the Exchange Act and the rules and regulations adopted by the Commission
thereunder and shall take such further action as Xxxxxx may reasonably request,
as required from time to time to enable Xxxxxx to sell Shares without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission.
SECTION 9
INDEMNIFICATION BY THE COMPANY
------------------------------
In the event of any registration under the Securities Act of any
offering of Shares, the Company hereby agrees to indemnify and hold harmless
Xxxxxx 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 Xxxxxx 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
Xxxxxx and each such participating person for any legal or other expenses
reasonably incurred by Xxxxxx or such participating person in connection with
investigating or defending any such Loss: provided, however, that, the Company
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 Xxxxxx or such participating
person, as the case may be, specifically for use in the preparation thereof. The
Company 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 Xxxxxx.
SECTION 10
INDEMNIFICATION BY XXXXXX
-------------------------
In the event of any registration under the Securities Act of any
offering of Shares, Xxxxxx hereby agrees to indemnify and hold harmless the
Company and each person who controls the Company 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 the Company, 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 the Company, other selling
shareholders, and each such controlling person or participating person for any
legal or other expenses reasonably incurred by the Company, other selling
shareholders, or such controlling person or participating person in connection
with investigating or defending any such Loss or proceeding: provided, however,
that Xxxxxx 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 Xxxxxx specifically for use in the preparation thereof.
Notwithstanding the foregoing, the liability of Xxxxxx under this Section 10
shall be limited to an amount equal to the price of the Shares sold by Xxxxxx in
connection with such registration unless such liability arises out of acts based
on willful conduct of Xxxxxx.
SECTION 11
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.
SECTION 12
CONTRIBUTION
------------
If the indemnification provided for in this Agreement is unavailable to
an indemnified party under Section 9 or Section 10 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
partys' 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 11 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 12 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 12, Xxxxxx 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.
SECTION 13
RIGHT OF FIRST REFUSAL
----------------------
In lieu of registering any shares under this Agreement pursuant to
Section 2 or 3 hereof or rendering an opinion pursuant to Section 5 hereof,
Company may elect to purchase all or a portion of the Shares that Xxxxxx demands
to be registered under Section 2 or requests to be registered under Section 3.
Company may elect to purchase said Shares by giving notice thereof to Xxxxxx
within 15 days from receipt by Company of the demand from Xxxxxx under Section 2
or the request to register Shares under Section 3. The purchase price of said
Shares shall be 80% of the average of the closing bid prices for the last 20
trading days. Company shall pay said amount to Xxxxxx within 15 days of the
receipt of the election to purchase by Xxxxxx. Simultaneously with receipt of
payment, Xxxxxx shall deliver to Company share certificates evidencing the
number of Shares to be purchased by Company together with an executed Stock
Assignment Separate from Certificate and such other documents as Company may
reasonably demand.
SECTION 14
LOCK IN
-------
Notwithstanding anything to the contrary herein, Xxxxxx shall be
prohibited from selling, assigning, transferring, or encumbering the Shares in
any manner except to the extent of 600,000 shares per year as provided for in
this Agreement, provided, however, that Xxxxxx may sell, assign, transfer, or
encumber the Shares or any portion thereof to any person or entity provided that
said person or entity specifically assume and agrees to be bound by the
obligations of Xxxxxx under this Agreement, the Agreement for Purchase of Stock,
and the Irrevocable Proxy in which case said person or entity shall secede to
all of the rights of Xxxxxx under the aforementioned agreements and further
provided that Xxxxxx remain obligated under said agreements as to any of the
Shares retained by Xxxxxx.
SECTION 15
EQUITABLE RELIEF
----------------
The parties agree and declare that legal remedies may be inadequate to
enforce the provisions of this Agreement and that equitable relief, including,
specific performance and injunctive relief, may be used to enforce such
provisions.
SECTION 16
MISCELLANEOUS
-------------
16.1 NOTICES. Any notice or other communication provided for herein
shall be given in writing, and delivered personally, by courier, by facsimile,
or by registered or certified mail postage prepaid, addressed, if to the
Company, at Xxxxxxxxxxxxx 00 Xxxxxx, Xxxxxxx D-10117 Fax No.00000 000 000 0000,
and if to Xxxxxx, at 0 Xxx Xxxxx Xxxx, Xxxxxx Xxxxxx, XX 00000 Fax No. (949)
000-0000 or such other address or facsimile number as may be designated in
writing by the Company or Xxxxxx. Except as otherwise provided in this
Agreement, each such notice shall be deemed given when received by the person to
whom the notice is addressed.
16.2 TERMINATION OF REGISTRATION RIGHTS. The obligations of the Company
to register Shares pursuant to Section 2 or Section 3 hereof, and the rights of
Xxxxxx to include its Shares in registration statements pursuant to such
Sections, shall terminate six (6) years following the date of this Agreement.
16.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their representative successors
and assigns.
16.4 WAIVER. No failure or delay on the part of the parties in
exercising any right, power or privilege hereunder, nor any course of dealing
among the parties, shall operate as a waiver of any such right, power, or
privilege, nor shall any single or partial exercise of any such right, power or
privilege preclude the simultaneous or later exercise of any other right, power,
or privilege. The rights and remedies provided herein are cumulative and are not
exclusive of any rights or remedies which any of the parties would otherwise
have.
16.5 FURTHER ASSURANCES. Each party agrees to execute and deliver such
additional documents and take such other actions as the other party may
reasonably request for purposes of carrying out the transactions contemplated by
this Agreement.
16.6 ATTORNEY'S FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
16.7 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
principles of conflict laws. The parties irrevocably consent to the jurisdiction
and venue of the state and federal courts located in California concerning any
action relating to this Agreement.
16.8 ENTIRE AGREEMENT; MODIFICATION. This Agreement expresses the
entire understanding of the parties as to its subject matter and supersedes any
prior discussions, negotiations and agreements with respect to such subject
matter. The terms of this Agreement may be amended or waived only in a writing
that is approved by the Company and Xxxxxx.
16.9 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
16.10 CAPTION HEADINGS; SINGULAR AND PLURAL; PERSONS. Caption headings
are provided for convenience only and shall not affect the interpretation of
this Agreement. As used herein, references to the singular include the plural
and the plural include the singular, except where the context requires
otherwise. As used herein, references to person includes individuals and
entities.
16.11 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in two or more counterparts and by facsimile signature, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first written above.
"Company: Advanced Technology Industries, Inc.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------
Xxxxx Xxxxxxxxx
Its V.P., CFO
"Xxxxxx" /s/ Xxxxxx Xxxxxx
-------------------------------------------
Xxxxxx Xxxxxx as Trustee of the Xxxxxx
Xxxxxx Separate Property Revocable Living
Trust dated June 30, 1998
/s/ Xxxxxx Xxxxxx
-------------------------------------------
Xxxxxx Xxxxxx as Trustee of the Xxxxxx
Xxxxxx Separate Property Revocable Living
Trust dated June 30, 1998
Exhibit B
IRREVOCABLE PROXY
ADVANCED TECHNOLOGY INDUSTRIES, INC.
Certificate Nos. Number of Shares Class
1565 (2,500,000 shares) and 3,500,000 $.0001 par value common
1566 (1,000,000 shares)
This proxy is made pursuant to an Agreement to Purchase Stock
("Agreement") entered into on August 23, 2000 by and between Advanced Technology
Industries, Inc., a Delaware corporation, ("ATI") and Xxxxxx Xxxxxx as the
Trustee of the Xxxxxx Xxxxxx Separate Property Revocable Living Trust dated June
30, 1998 and Xxxxxx Xxxxxx as the Trustee of the Xxxxxx Xxxxxx Separate Property
Revocable Living Trust dated June 30, 1998 (hereinafter collectively referred to
as "Xxxxxx") whereby Xxxxxx purchased 3,500,000 shares of the $.0001 per value
common stock of ATI in consideration for the transfer by Xxxxxx to ATI of
3,500,000 shares of the $.0001 par value common stock of Nurescell, Inc.
Xxxxxx acknowledges that Xxxxxx offered to give this proxy as an
inducement to ATI to enter into the Agreement and that said proxy was not
solicited or requested by ATI but that ATI would not have entered into the
Agreement without Xxxxxx agreeing to execute this proxy and that the same was a
material part of the consideration received by ATI. Xxxxxx further acknowledges
that the circumstances under which this proxy was offered and accepted cause
this proxy to be coupled with an interest as that term is used in Section 212(e)
of the Delaware Corporation Law.
This proxy shall be irrevocable for a period of six years. The proxy
holder and attorney in fact hereunder shall be Xx. Xxxx Xxxxxxx or his designee
("Proxy Holder"). Xx. Xxxxxxx (and any successor Proxy Holder) shall have full
power of substitution and may designate another holder of this proxy in writing
during his lifetime or may make such designation in a writing to be effective
upon his death or incapacity.
During the term of this proxy the Proxy Holder shall have the exclusive
right to determine the manner in which the shares are to be voted and to vote
the shares or give written consent, in person or by proxy, at all meetings of
the shareholders of ATI, and in all proceedings in which the vote or written
consent of shareholders may be required or authorized by law.
This proxy shall be governed by and construed under the laws of the
State of Delaware
Shareholders
Dated: 11/15/00 /s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx as Trustee of
the Xxxxxx Xxxxxx Separate
Property Revocable Living
Trust dated June 30, 1998.
Dated: 11-15-00 /s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx as Trustee of
the Xxxxxx Xxxxxx Separate
Property Revocable Living
Trust dated June 30, 1998.
Proxy Holder
Dated: 1/11/01 /s/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx
