EXHIBIT 4.2
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") dated as of
September 30, 1999, is entered into by and among GateField Corporation, a
Delaware corporation with offices at 00000 Xxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 (the "Company"), and MHT American Holding, Inc., a Delaware
corporation with offices at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX
00000, (the "Purchaser"), in connection with the purchase of 153,848 shares
of the Company's Common Stock, par value $.10 (the "Stock"), to be sold to
the Purchaser at the Closing (as defined below). The solicitation of this
Agreement and the offer and sale of the Stock are being made in reliance upon
the provisions of Regulation D ("Regulation D") promulgated by the Securities
and Exchange Commission ("SEC") under the United States Securities Act of
1933, as amended (the "Securities Act") or upon the provisions of Section
4(2) of the Securities Act.
In consideration of the mutual promises, representations, warranties and
conditions set forth herein, and intending to be legally bound hereby, the
Company and the Purchaser agree as follows:
1. PURCHASE AND SALE OF STOCK; CLOSING CONDITIONS
1.1 PURCHASE AND SALE OF STOCK.
(a) PURCHASE OF STOCK. The Purchaser hereby agrees to
purchase and the Company agrees to sell to the Purchaser 153,848 shares of
Stock at a price of $6.499922 per share for the aggregate purchase price of
$1,000,000 (the "Purchase Price"). The closing of the purchase of such Stock
shall take place at the "Closing," subject to the satisfaction (or waiver) of
the conditions thereto set forth in Sections 1.2 and 1.3 below:
(b) PAYMENT AND DELIVERY OF STOCK CERTIFICATES. On the
Closing Date (as defined below), (i) the Purchaser shall pay the Purchase
Price by wire transfer of immediately available funds to the Company, in
accordance with the Company's written instructions, against delivery of duly
executed stock certificates which the Purchaser is then purchasing and (ii)
the Company shall deliver to the Purchaser such stock certificates against
delivery of the Purchase Price.
(c) CLOSING DATES. Subject to the satisfaction (or waiver)
of the conditions thereto set forth in Sections 1.2 and 1.3 below, the date
and time of the issuance and sale of the Stock pursuant to this Agreement
(the "Closing Date") shall be 9:00 am. Pacific Daylight Time on September 30,
1999 or at such time as the parties may mutually agree upon.
1.2 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO ISSUE
AND SELL THE STOCK. The obligation hereunder of the Company to issue and
sell the Stock to the Purchaser at the Closing is subject to the
satisfaction, at or before the Closing, of each of the conditions set forth
below. These conditions are for the Company's sole benefit and may be waived
by the Company at any time in its sole discretion.
1.
(a) ACCURACY OF THE PURCHASER'S REPRESENTATIONS AND
WARRANTIES. The representations and warranties of the Purchaser contained in
this Agreement shall be true and correct as of the date when made and as of
the Closing Date as though made at such time.
(b) PERFORMANCE BY THE PURCHASER. The Purchaser shall have
performed, satisfied and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Purchaser at or prior to the Closing.
(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits or adversely affects any of the transactions
contemplated by this Agreement, and no proceeding shall have been commenced
which may have the effect of prohibiting or adversely affecting any of the
transactions contemplated by this Agreement.
1.3 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER TO
ACQUIRE THE STOCK. The obligation of the Purchaser hereunder to acquire and
pay for the Stock at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions. Each of these
conditions is for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in its sole discretion.
(a) ACCURACY OF THE COMPANYS REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained in this Agreement
shall be true and correct as of the date when made and as of the Closing Date
as though made at such time.
(b) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to the Closing.
(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits or adversely effects any of the transactions
contemplated by this Agreement, and no proceeding shall have been commenced
which may have the effect of prohibiting or adversely affecting any of the
transactions contemplated by this Agreement.
(d) OFFICER'S CERTIFICATE. The Company shall have delivered
to the Purchaser a certificate in such form and substance as shall be
reasonably satisfactory to the Purchaser, executed by an executive officer of
the Company as of the Closing Date, to the effect that all of the conditions
to the Closing shall have been satisfied.
(e) CERTIFICATE AND DOCUMENTS. The Company shall have
delivered to the Purchaser:
2.
(i) the Certificate of Incorporation of the Company, as
amended and in effect as of the date of the Closing certified by the
Secretary of State of the State of Delaware;
(ii) certificates, as of the most recent practicable
dates, as to the corporate good standing of the Company issued by the
Secretary of State of the State of Delaware and the Secretary of State of the
State of California;
(iii) the By-laws of the Company, as amended and in
effect as of the date of the Closing, certified by the Secretary of the
Company; and
(iv) resolutions of the Board of Directors of the
Company authorizing and approving all matters in connection with this
Agreement and the transactions contemplated hereby, certified by the
Secretary of the Company as of the Closing Date.
(f) OTHER MATTERS. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchaser and its counsel, and the
Purchaser and its counsel shall have received all such counterpart originals
or certified or other copies of such documents as they may reasonably request.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants to the Company that:
2.1 NO GOVERNMENT RECOMMENDATION OR APPROVAL. The Purchaser
understands that no United States federal or state agency, or similar agency
of any other country has passed upon or made any recommendation or
endorsement of the Company or the offering of the Stock.
2.2 INTENT. The Purchaser is purchasing the Stock for its own
account and not with a view towards distribution and the Purchaser has no
present arrangement (whether or not legally binding) at any time to sell the
Stock to or through any person or entity; provided, however, that by making
the representations herein, the Purchaser does not agree to hold the Stock
for any minimum or other specific term and reserves the right to dispose of
the Stock at any time in accordance with Federal and state securities laws
applicable to such disposition. The Purchaser understands that the Stock
must be held indefinitely unless such Stock is subsequently registered under
the Securities Act or an exemption from registration is available. The
Purchaser has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act.
2.3 SOPHISTICATED INVESTOR. The Purchaser is a sophisticated
investor (as described in Rule 506(b)(2)(ii) of Regulation D) and an
accredited investor (as defined in Rule 501 of Regulation D), and the
Purchaser has such experience in business and financial matters that it is
capable of evaluating the merits and risks of an investment in the Stock.
The Purchaser acknowledges that the investment in the Stock is speculative
and involves a high degree of risk.
3.
2.4 INDEPENDENT INVESTIGATION. The Purchaser, in making its
decision to purchase the Stock subscribed for hereunder, has relied upon an
independent investigation made by it and/or its representatives and has not
relied on any oral or written representations or assurances from the Company
or any representative or agent of the Company, other than as set forth in
this Agreement and in the public filings of the Company. Prior to the date
hereof, the Purchaser has been furnished with and has reviewed the Company's
latest proxy statement and Annual Report on Form 10-K sent to the Company's
stockholders and all documents filed by the Company since the year ended
December 31, 1998 pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (such
documents are collectively referred to in this Agreement as the "Exchange Act
Reports"). The Purchaser has had a reasonable opportunity to ask questions
of and receive answers from the Company concerning the Company and the
offering of securities and has received satisfactory answers to all inquiries
it has made with respect to the Company and the Stock. The Purchaser
acknowledges the price and terms of the Stock offered hereby has been
determined by negotiation and does not necessarily bear any relationship to
the assets, book value or potential performance of the Company or any other
recognized criteria of value.
2.5 AUTHORITY. This Agreement has been duly authorized and
validly executed, and delivered by the Purchaser and is a valid and binding
agreement enforceable in accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally.
2.6 NO LEGAL ADVICE FROM COMPANY. The Purchaser acknowledges that
it has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with his or its own legal counsel and tax
advisors. Except for any statements or representations of the Company made
in this Agreement and in the Exchange Act Reports, the Purchaser is relying
solely on such counsel and advisors and not on any statements or
representations of the Company or any of its representative or agents for
legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any
jurisdiction.
2.7 NO BROKERS. The Purchaser has taken no action which would
give rise to any claim by any person for brokerage commission, finders fees
or similar payments by the Company relating to this Agreement or the
transactions contemplated hereby.
2.8 NOT AN AFFILIATE. Prior to the Closing, the Purchaser has not
been an officer, director or "affiliate" (as that term is defined in Rule 405
of the Securities Act) of the Company.
2.9 RELIANCE ON REPRESENTATIONS AND WARRANTIES. The Purchaser
understands that the Stock is being offered and sold to it in reliance on
specific provisions of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings
of the Purchaser set forth in this Agreement in order to determine the
applicability of such provisions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.
Subject to and except as disclosed by the Company in APPENDIX A annexed
hereto (the "Disclosure Schedule"), the Company represents and warrants to
the Purchaser that:
3.1 COMPANY STATUS. The Company has registered the Common Stock
pursuant to Section 12(b) or 12(g) of the Exchange Act and is in full
compliance with all reporting requirements of the Exchange Act.
3.2 CURRENT PUBLIC INFORMATION. The Exchange Act Reports include
all the filings made by the Company since the year ended December 31, 1998
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act.
3.3 NO DIRECTED SELLING EFFORTS OR GENERAL SOLICITATION IN REGARD
TO THIS TRANSACTION. Neither the Company nor any of its affiliates nor any
distributor or any person acting on its or their behalf has conducted any
"directed selling efforts" with respect to the Stock, nor have they made any
offers or sales of any security or solicited any offers to buy any security,
under circumstances that would require registration of the offer, issuance
and sale of the Stock under the Securities Act.
3.4 CAPITALIZATION; ISSUANCE OF SHARES.
(a) As of the date of this Agreement, the authorized capital
stock of the Company consists of 65,000,000 shares of Common Stock, of which
4,171,072 shares are issued and outstanding, and 2,000,000 shares of
preferred stock, of which 1,000,000 shares have been designated Series B
Preferred Stock, 18,003 shares of which shares are issued and outstanding,
300,000 shares of which have been designated Series C Preferred Stock all of
which are issued or outstanding and 420,000 shares of which have been
designated Series C-1 Preferred Stock, none of which are issued and
outstanding but up to all of which is issuable upon conversion of that
certain Convertible Promissory Note dated May 25, 1999 issued to Actel
Corporation. All of the issued and outstanding shares of Preferred Stock and
Common Stock have been duly and validly issued and are fully paid and
non-assessable. Except as set forth in Section 3.4 of the Disclosure
Schedule (i) no subscription, warrant, option, convertible security or other
right (contingent or otherwise) to purchase or acquire any shares of capital
stock of the Company is authorized or outstanding, (ii) the Company has no
obligation (contingent or otherwise) to issue any subscription, warrant,
option, convertible security or other such right or to issue or distribute to
holders of any shares of its capital stock any evidences of indebtedness or
assets of the Company, and (iii) the Company has no obligation (contingent or
otherwise) to purchase, redeem or otherwise acquire any shares of its capital
stock or any interest therein or to pay any dividend or make any other
distribution in respect thereof.
(b) The issuance, sale and delivery of the Stock in
accordance with this Agreement have been duly authorized by all necessary
corporate and stockholder action on the part of the Company and all such
shares shall be duly reserved for issuance.
3.5 ORGANIZAT10N AND QUALIFICATION. The Company is a corporation
duly incorporated and existing in good standing under the laws of the State
of Delaware and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. The Company does not have
any subsidiaries, except for those listed in
5.
its Annual Report on Form 10-K (or the exhibits attached thereto) filed with
the SEC for the year ended December 31, 1998. The Company and each such
subsidiary is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary other
than those in which the failure so to qualify would not have a Material
Adverse Change (as defined below). References to the "Company" in this
Agreement shall also include each subsidiary of the Company, except where the
context otherwise requires.
3.6 AUTHORIZATION; ENFORCEMENT. (i) The Company has the requisite
corporate power and authority to enter into and perform this Agreement and to
issue the Stock in accordance with the terms hereof and thereof, (ii) the
execution, issuance and delivery of this Agreement and the Common Stock by
the Company, and the consummation by the Company of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action, and no further consent or authorization of the Company or its Board
of Directors or stockholders is required, (iii) this Agreement has been duly
executed and delivered by the Company, and upon execution, issuance and
delivery thereof shall be a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws relating to, or affecting generally the enforcement of,
creditors' rights and remedies or by other equitable principles of general
application.
3.7 CORPORATE DOCUMEENTS. The Company has furnished or made
available to the Purchaser true and correct copies of the Company's
Certificate of Incorporation, as in effect on the date hereof (the
"Certificate"), and the Company's By-Laws, as in effect on the date hereof
(the "By-Laws").
3.8 NO CONFLICTS. The execution, delivery and performance of this
Agreement and the sale and issuance of the Stock by the Company, do not and
will not result in a violation of or conflict with the Certificate or
By-Laws, or result in a violation of any Federal, state, local or foreign
law, rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
-subsidiaries is bound or affected, except for such conflicts and violations
as would not, individually or in the aggregate, have a Material Adverse
Change. The business of the Company is not being conducted in violation of
any law, ordinance or regulations of any governmental entity, except for
possible violations which either singly or in the aggregate do not and will
not have a Material Adverse Change. The Company is not required under
Federal, state or local law, rule or regulation in the United States to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement or
issue and sell the Stock in accordance with the terms hereof and thereof
(other than any SEC, NASD, Exchange or state securities filings which may be
required to be made by the Company subsequent to the Closing, and any
registration statement which may be filed pursuant hereto); provided that,
for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Purchaser herein.
6.
3.9 EXCHANGE ACT REPORTS; FINANCIAL STATEMENTS. The Company has
delivered or made available to the Purchaser true and complete copies of the
Exchange Act Reports (including, without limitation, proxy information and
solicitation materials). As of their respective dates, the Exchange Act
Reports complied in all material respects with the requirements of the
Exchange Act and rules and regulations of the SEC promulgated thereunder and
other Federal, state and local laws, rules and regulations applicable to such
Exchange Act Reports, and none of the Exchange Act Reports contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the Exchange
Act Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed
or summary statements) and fairly present the financial condition of the
Company as of the dates thereof and the results of operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments which in the aggregate will not be
material).
3.10 NO MATERIAL ADVERSE CHANGE. Since June 30, 1999, there has
been no material adverse change in the business, operations, properties,
prospects, condition, financial or otherwise, net worth, or results of
operations of the Company or its subsidiaries, except as described in the
Exchange Act Reports and the Disclosure Schedule ("Material Adverse Change").
3.11 NO UNDISCLOSED LIABILITIES. The Company and its subsidiaries
have no liabilities or obligations of any type, which in the aggregate exceed
$100,000, that are not fully reflected or disclosed in the Exchange Act
Reports, other than contractual liabilities and those incurred in the
ordinary course of the Company's or its subsidiaries' respective businesses
since June 30, 1999.
3.12 NO UNDISCLOSED EVENTS OR CIRCUMSTANCES. No event or
circumstance has occurred or exists with respect to the Company or its
subsidiaries or their respective businesses, properties, prospects,
operations or condition, financial or otherwise, which, under applicable law,
rule or regulation, requires disclosure in the Exchange Act Reports or public
disclosure prior to the date hereof by the Company and which has not been so
disclosed.
3.13 NO BROKERS. The Company has taken no action which would give
rise to any claim by any person for brokerage commissions, finder's fees or
similar payments by the Purchaser relating to this Agreement or the
transactions contemplated hereby.
3.14 LITIGATION. There is no action, suit or proceeding, or
governmental inquiry or investigation, pending, or, to the best of the
Company's knowledge, any basis therefor or threat thereof, against the
Company, which questions the validity of this Agreement or the
7.
right of the Company to enter into it, or which might result, either
individually or in the aggregate, in a Material Adverse Change.
3.15 INTELLECTUAL PROPERTY. To the best of its knowledge, the
Company owns or possesses sufficient legal rights to all patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information
and other proprietary rights and processes necessary for its business as now
conducted and as presently proposed to be conducted, without any known
infringement of the rights of others The business conducted or proposed by
the Company does not and will not cause the Company to infringe or violate
any of the patents, trademarks, service marks, trade names, copyrights,
licenses, trade secrets or other intellectual property rights of any other
person or entity. The Company is not aware that any employee is obligated
under any contract (including any license, covenant or commitment of any
nature), or subject to any judgment, decree or order of any court or
administrative agency, that would conflict or interfere with (i) the
performance of employee's duties as an officer, employee or director of the
Company, (ii) the use of such employee's best efforts to promote the
interests of the Company or (iii) the Company's business as conducted or
proposed to be conducted. No other person or entity (including without
limitation any prior employer of any employee of the Company) has any right
to or interest in any inventions, improvements, discoveries or other
confidential information utilized by the Company in its business.
3.16 MATERIAL CONTRACTS AND OBLIGATIONS. Section 3.16 of the
Disclosure Schedule lists each material agreement to which the Company is a
party or subject, including without limitation all material employment and
consulting agreements, employee benefit, bonus, pension, profit-sharing,
stock option, stock purchase and similar plans and arrangements, and
distributor and sales representative agreements. The Disclosure Schedule
lists each agreement with any stockholder, officer or director of the
Company, or any "affiliate" or "associate" of such persons (as such terms are
defined in the rules and regulations promulgated under the Securities Act),
including without limitation any agreement or other arrangement providing for
the furnishing of services by, rental of real or personal property from, or
otherwise requiring payments to, any such person or entity and any agreement
relating to the Intellectual Property Rights. The Company has delivered to
counsel to the Purchaser copies of all of the foregoing agreements. All of
such agreements and contracts are valid, binding and in full force and effect.
3.17 EMPLOYEES. All employees of the Company whose employment
responsibility requires access to confidential or proprietary information of
the Company have executed and delivered nondisclosure and assignment of
invention agreements and all of such agreements are in full force and effect.
3.18 ERISA. The Company does not have or otherwise contribute to
or participate in any employee benefit plan subject to the Employee
Retirement Income Security Act of 1974.
3.19 BOOKS AND RECORDS. The minute books of the Company contain
complete and accurate records of all meetings and other corporate actions of
its stockholders and its Board of Directors and committees thereof. The
Company has delivered to counsel to the Purchaser copies of all of the
minutes of all meetings and other corporate actions of its
8.
stockholders and its Board of Directors and committees thereof held or taken
since January 1, 1996.
4. COVENANTS
4.1 LISTING OF SHARES. The Company agrees, if the Company applies
to have its Common Stock traded on any principal stock exchange or market, it
will include the Stock in such application and will take such other action as
is necessary or desirable to cause the Stock to be listed on such other
exchange or market as promptly as possible.
4.2 EXCHANGE ACT REGISTRATION. The Company will cause its Common
Stock to continue to be registered under Section 12(g) or 12(b) of the
Exchange Act, will comply in all respects with its reporting and filing
obligations under the Exchange Act, and will not take any action or file any
document (whether or not permitted by the Exchange Act or the rules
thereunder) to terminate or suspend such registration or to terminate or
suspend its reporting and filing obligations under the Exchange Act. The
Company will take all action under its control to continue the listing and
trading of its Common Stock on the Exchange.
4.3 CORPORATE EXISTENCE. The Company will take all steps
necessary to preserve and continue the corporate existence of the Company.
4.4 SALE OF SHARES UNDER RULE 144. From and after the Closing, at
the request of any holder of Shares (or other Registrable Securities (as
defined in the Registration Rights Agreement)) who proposes to sell the same
in compliance with Rule 144 under the Securities Act, the Company shall (a)
promptly furnish to such holder a written statement as to its compliance with
the filing requirements of the SEC as set forth in Rule 144, as the same may
be amended from time to time, and (b) make such additional filings of reports
with the SEC as will enable the holders of Registrable Securities to make
sales thereof pursuant to such Rule. The Company shall provide its transfer
agent with appropriate instructions and/or opinions of counsel in order for
any restrictive legend contained on the certificates for the Shares (or other
Registrable Securities) to be removed when appropriate and for such holders
to sell, transfer and/or dispose of the Registrable Securities in accordance
with Rule 144.
5. LEGENDS
5.1 LEGENDS. The certificates evidencing the Stock will bear the
following legend (the "Legend"):
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
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
At the Closing, the Company will issue to the transfer agent for its
common stock (and to any substitute or replacement transfer agent for its
common stock coterminous with the Company's appointment of any such
substitute or replacement transfer agent) irrevocable
9.
instructions in form and substance reasonably satisfactory to the Purchaser.
It is the intent and purpose of such instructions to require the transfer
agent for the common stock from time to time to issue certificates evidencing
the Shares free of the Legend during the following period and under the
following circumstances and without consultation by the transfer agent with
Company or its counsel and without the need for any further advice or
instruction to the transfer agent by or from the Company or its counsel:
(a) At any time from and after the Closing Date, upon any
surrender of one or more certificates evidencing Stock and which bear the
Legend, to the extent accompanied by a notice requesting the issuance of new
certificates free of the Legend to replace those surrendered and containing
or also accompanied by representations that (i) the holder thereof is
permitted to dispose thereof pursuant to Rule 144 promulgated under the
Securities Act or (ii) the holder intends to effect the sale or other
disposition of such securities to a purchaser or purchasers who will not be
subject to the registration requirements of the Securities Act, or (iii) such
holder is not then subject to such requirements.
5.2 NO OTHER LEGEND OR STOCK TRANSFER RESTRICTIONS. No legend has
been or shall be placed on the share certificates representing the Stock and
no instructions or "stop transfers," so called, "stock transfer
restrictions," so called, or other restrictions have been or shall be given
to the Company's transfer agent with respect thereto, other than as set forth
in this Section 5.
5.3 PURCHASER'S COMPLIANCE. Nothing in this section shall affect
in any way the Purchaser's obligations under and agreement to comply with all
applicable securities laws upon resale of the Stock.
6. CHOICE OF LAW AND VENUE
THIS AGREEMENT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OR CHOICE OF
LAW, EXCEPT TO THE EXTENT THAT THE LAW OF THE STATE OF DELAWARE REGULATES THE
COMPANY'S ISSUANCE OF SECURITTES.
7. ASSIGNNIENT; ENTIRE AGREEMENT; AMENDMENT
7.1 ASSIGNMENT. This Agreement may not be assigned by the
Purchaser or the Company to any other person or entity. Notwithstanding the
foregoing, the provisions of this Agreement shall inure to the benefit of,
and be enforceable by, any entity which shall succeed to all or substantially
all of the assets and liabilities of Purchaser by merger or purchase.
7.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement, and the other
agreements and documents delivered pursuant hereto constitute the full and
entire understanding and agreement between the parties with regard to the
subject hereof and thereof and supersede all prior agreements and
understandings relating to such subject matter, and no party shall be liable
or bound to any other party in any manner by any warranties, representations
or covenants except as specifically set forth in this Agreement or therein.
Except as expressly provided in this Agreement, neither this Agreement nor
any term hereof may be amended, waived, discharged or
10.
terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
8. NOTICES, ETC.; EXPENSES; INDEMNITY
8.1 NOTICES. Any notice, demand, request or other communication
required or permitted to be given by either the Company or the Purchaser
pursuant to the terms of this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or by facsimile,
with a hard copy to follow by overnight delivery by a reputable courier.
If to the Company, at: GateField Corporation, 00000 Xxxxxxx Xxxxxxxxx,
Xxxxxxx, XX 00000-0000, Attention: President, Facsimile No: (000) 000-0000,
or at such other address or addresses as may have been finished in writing by
the Company to the Purchaser, with a copy to Xxxx X. Xxxxxx, Xxx., Xxxxxx
Xxxxxxx XXX, 0 Xxxx Xxxx Square, 4th Floor, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000-0000, Facsimile No: (000) 000-0000; or
If to the Purchaser, at: MHT American Holding, Inc., 10-1 Komine, 2
chome, Yahatanishi-ku, Kitakyushu 806-5888 Japan, Attention: President, or at
such other address or addresses as may have been furnished to the Company in
writing by such Purchaser, with copies to: Xxxxx Xxxxxx, Mitsui High-tec
Inc., 00-0 Xxxxxx, 0 xxxxx, Xxxxxxxxxxx-xx, Xxxxxxxxxx 000-0000 Xxxxx;
Xxxxxxxx Xxxxxx, MHT America Holdings, Inc., 1500 #B East xxxxxxx Road, Elk
Xxxxx Xxxxxxx, Xxxxxxxx 00000-0000.
8.2 INDEMNIFICATION. Each party ("Indemnifying Party") shall
indemnify the other party against any loss, liabilities, expenses, cost or
damages (including reasonable attorney's fees) incurred as a result of the
Indemnifying Party's breach of any representation, warranty, covenant or
agreement in this Agreement.
9. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
10. SURVIVAL; SEVERABILITY
The representations, warranties, covenants and agreements of the parties
hereto shall survive the Closing. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision; provided that the absence of such
provision does not materially change the economic benefit of this Agreement
to any party.
11. TITLE AND SUBTITLES
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this
Agreement.
11.
IN WITNESS WHEREOF, the parties have signed this Agreement the day and year
first written above.
GATEFIELD CORPORATION
By: Xxxxxxx Xxxx
----------------------------
(Print Name)
By: /s/ Xxxxxxx Xxxx
----------------------------
(Signed Name)
Title: President & CEO
-------------------------
(Position, if applicable)
PURCHASER:
MHT AMERICAN HOLDINGS, INC.
By: Xxxxxxx Xxxxxx
----------------------------
(Print Name)
By: /s/ Xxxxxxx Xxxxxx
----------------------------
(Signed Name)
Title: President
-------------------------
(Position, if applicable)
12.
