EXHIBIT 10.12
RESTRUCTURE AGREEMENT
THIS RESTRUCTURE AGREEMENT (the "Agreement") is entered into on March
21, 2003 (the "Effective Date"), by and among Triton Private Equities Fund, L.P.
("Triton"), Nurescell Inc. ("Nurescell"), Advanced Technology Industries, Inc.
("ATI") and ATI Nuklear AG ("ATI Sub"), with reference to the following facts
and circumstances:
A. Nurescell and ATI Sub have previously entered into a "License
Agreement" dated as of August 15, 2000 (the "License Agreement"), an "Investment
Agreement" dated as of August 17, 2000 (the "Investment Agreement") and a
Modification Agreement dated as of June 11, 2001 (the "Modification Agreement"),
each of which was amended by a "Transaction Restructure Agreement" entered into
as of September 30, 2001 by Nurescell, ATI and ATI Sub (the "2001 Restructure
Agreement"). Under the License Agreement, as amended, Nurescell has licensed to
ATI Sub certain "Technology" (as described in Exhibit 1 to the License
Agreement) in return for specified royalty payments.
B. Nurescell presently owes ATI (i) approximately $176,158 for
short-term cash advances previously made by ATI to Nurescell and (ii) various
sums for legal fees that ATI has paid on Nurescell's behalf. Nurescell is also
indebted to ATI Sub pursuant to a $1 million promissory note (the "ATI Sub
Note"). The ATI Sub Note is secured by (i) 15,000,000 unissued shares of
Nurescell's common stock ("Nurescell Common Stock"), (ii) a first priority
security interest in the Technology and (iii) all royalties due to Nurescell
pursuant to Section 4.3 of the License Agreement (collectively, the
"Collateral"). Nurescell is presently in default with respect to its obligations
to ATI and its obligations to ATI Sub under the ATI Sub Note.
C. Nurescell is indebted to Triton (collectively, the "Nurescell Debt")
pursuant to (i) Nurescell's Series 1999-A 8% Convertible Promissory Note dated
December 15, 1999, which came due as to $335,000 in principal on December 1,
2001 (the "1999 Note"), (ii) Nurescell's Series 2000-A 8% Convertible Promissory
Note dated February 8, 2000, which came due as to $385,000 in principal on
December 1, 2001 (the "2000 Note"), (iii) accrued interest on the 1999 Note and
2000 Note (taking into account Triton's prior conversion of $50,000 of the 1999
Note) and (iv) accrued penalties due to Nurescell's failure to register the
shares underlying the 1999 and 2000 Notes as required by the Registration Rights
Agreements (the "Registration Agreements") between Triton and Nurescell dated
December 15, 1999 and February 8, 2000 (again taking into account Triton's prior
conversion of $50,000 of the 1999 Note). Nurescell is presently in default with
respect to its obligations to Triton in connection with the Nurescell Debt.
D. In light of the fact that Nurescell is unable to satisfy its
obligations to ATI, ATI Sub and Triton, the parties desire to restructure their
relationship so that (i) through conversion into Nurescell Common Stock of at
least a portion of the Nurescell Debt, Triton is able to become the majority
shareholder of Nurescell and control its operations, (ii) Nurescell's Articles
of Incorporation are amended to increase the number of authorized shares so
that, if Triton so desires, Triton is able to convert all of the Nurescell Debt
into Nurescell Common Stock (assuming a conversion price of $0.001 per share)
and (iii) ATI and/or ATI Sub are able to acquire the Technology in return for
(A) cancellation of the ATI Sub Note, the 2001 Restructure Agreement, the
Investment Agreement, the License Agreement, the Modification Agreement and all
other obligations of Nurescell to ATI or ATI Sub (collectively, the "ATI
Obligations") and (B) release of the Collateral for the ATI Sub Note, in each
case on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the representations, warranties and
agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
CONVERSION OF NURESCELL DEBT AND RELATED MATTERS
1.01 INITIAL TRITON CONVERSION. Immediately after (i) Nurescell's
current Board of Directors adopts resolutions in substantially the form of the
attached Exhibit "A" and (ii) all current directors and officers subsequently
resign from their positions with Nurescell (such resignations being in the form
of the attached Exhibit "B"), Triton shall convert into Nurescell Common Stock
at least that much of the Nurescell Debt as would give Triton a majority of the
then-outstanding shares of Nurescell Common Stock (which is anticipated to
require a conversion for at least 16,070,239 shares). To the extent requested by
Triton, Nurescell shall use its best efforts to assist Triton with the foregoing
conversion (the "Initial Conversion"), including appropriate instructions to
Nurescell's stock transfer agent.
1.02 INCREASE IN AUTHORIZED SHARES. Upon completion of the Initial
Conversion, Nurescell and Triton shall each use their best efforts to (i) amend
Nurescell's Articles of Incorporation to increase the number of authorized
shares (the "Share Increase") to an amount that will at least allow the balance
of the Nurescell Debt to be converted into Nurescell Common Stock (assuming a
conversion price of $0.001 per share) and (ii) prepare, file with the Securities
and Exchange Commission and deliver to Nurescell's shareholders an Information
Statement (the "Information Statement") describing both the Share Increase and
the transfer of the Technology pursuant to this Agreement (the "Technology
Transfer") in the manner required by law. The parties acknowledge and agree that
the Share Increase and the Technology Transfer will become effective 20 days
after the Information Statement has been sent or given to Nurescell's
shareholders. To the extent reasonably requested by Nurescell and/or Triton,
ATI, in its capacity as a Nurescell shareholder, shall cooperate in causing the
Share Increase to become effective.
1.03 SUBSEQUENT TRITON CONVERSIONS. After the Effective Date, Triton
may from time-to-time, in its sole discretion, cause some or all of the
remaining Nurescell Debt to be converted into common stock. To the extent
requested by Triton, Nurescell shall use its best efforts to assist Triton with
each such conversion including, but not limited to, providing confirmation of
the prior approval of such conversion by Nurescell's Board of Directors and
appropriate instructions to Nurescell's stock transfer agent.
ARTICLE II
TRANSFER OF THE TECHNOLOGY AND RELATED MATTERS
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2.01 TECHNOLOGY TRANSFER AND OTHER TRANSACTIONS.
(a) On the Closing Date (as defined below), the following
shall automatically occur without any further action of the parties:
(i) as of the Closing Date, Nurescell, ATI and ATI Sub shall
be deemed to have entered into an agreement in the form of the attached Exhibit
"C" (the "Assignment Agreement"), the terms of which shall be incorporated into
this Agreement as of the Closing Date if set forth here in full, pursuant to
which the Technology shall be transferred to ATI Sub in "as is" condition;
(ii) as of the Closing Date, the parties hereto shall be
deemed to have entered into an agreement in the form of the attached Exhibit "D"
(the "Mutual Release"), the terms of which shall be incorporated into this
Agreement as of the Closing Date as if set forth here in full;
(iii) as of the Closing Date, the Collateral for the ATI Sub
Note shall be deemed forever released and neither ATI nor ATI Sub shall have any
further rights with respect thereto (except as provided in clause (i) above);
and
(iv) as of the Closing Date, the ATI Obligations shall be
cancelled and of no further force and effect.
(b) The parties agree that for all purposes the "Closing Date"
shall be the 23rd day (or if such day is a Saturday, Sunday or holiday, the next
business day thereafter) following the date that the Information Statement has
been sent or given to Nurescell's shareholders; provided, however, that if at
least three (3) days prior to the Closing Date either Triton or ATI shall give
the other a dated written notice (the "Notice") which (i) states that one or
more specified conditions listed in Section 2.02 below (the "Transfer
Conditions") has not been satisfied or waived and (ii) provides the basis for
such statement in reasonable detail, then the Closing Date shall be delayed
until the specified Transfer Condition(s) has been satisfied or waived. In the
event that a Notice is given, the parties shall thereafter reasonably cooperate
to promptly satisfy the Transfer Condition(s) specified therein and the Closing
Date shall be the date upon which the party giving the Notice acknowledges in
writing that the specified Transfer Condition(s) has now been satisfied or
waived (which acknowledgment shall not be unreasonably withheld or delayed);
provided, however, that if such satisfaction or waiver does not occur within
twenty (20) days after the date of the Notice, the party giving the Notice shall
thereafter have the right, in its sole discretion, to terminate this Agreement
if permitted under Section 5.01(b) below.
2.02 CONDITIONS TO TRANSFER AND OTHER TRANSACTIONS. The Transfer
Conditions shall consist of all of the following:
(a) the Initial Conversion shall have occurred;
(b) the Share Increase and the Technology Transfer shall have
been approved by a majority of the outstanding shares of Nurescell Common Stock
and shall have become effective as provided in Section 1.02 above; and
(c) as of the date of satisfaction of the Transfer Condition
in subsection (b) above (the "Satisfaction Date"):
(i) no preliminary or permanent injunction or other order
shall have been issued by any federal or state court of competent jurisdiction
in the United States or by any United States federal or state governmental or
regulatory agency, body or authority which prevents consummation of any material
portion of the transactions contemplated by this Agreement and remains in
effect;
(ii) no action or proceeding by any governmental or
regulatory agency, body or authority shall have been commenced or threatened
(and remain pending or threatened) against any party to this Agreement or any of
their respective affiliates, officers or directors seeking to prevent or
challenging any material portion of the transactions contemplated by this
Agreement; and
(iii) no action or proceeding before any federal or state
court of competent jurisdiction in the United States shall have been commenced
(and remain pending) against any party to this Agreement or any of their
respective affiliates, officers or directors seeking to prevent or challenging
any material portion of the transactions contemplated hereby or seeking material
damages in connection therewith.
2.03 STATUS OF THE TECHNOLOGY. ATI and ATI Sub are aware that at such
time as the Technology is transferred pursuant to Section 2.01 above, such
transfer will be in "as is" condition and, except as provided in Section 3.04(c)
below, will be made without representation or warranty of any kind, including
warranties as to marketability and fitness for any particular purpose. ATI and
ATI Sub are fully aware of the extent and nature of the Technology, have fully
investigated all matters with respect thereto and are fully aware of all laws
and regulations which relate to Nurescell's transfer thereof, and,
notwithstanding any other provision of this Agreement, hereby assume all risk
thereof and waive any liability of Nurescell and/or Triton with respect thereto.
In light of ATI Sub's security interest in the Collateral, the parties hereto
agree that the transfer of the Technology pursuant to this Agreement constitutes
a transfer of collateral pursuant to Section 9609 of the California Uniform
Commercial Code.
2.04 FURTHER ACTS.
(a) Prior to the Closing Date, Triton shall take any action
necessary to vote all of its Nurescell Common Stock in favor of the approval and
authorization of the Share Increase and the Technology Transfer, including
signing a written consent in the form of the attached Exhibit "E."
(b) On the Closing Date, Nurescell shall deliver to ATI Sub
(i) an executed separate assignment document in the form provided by ATI Sub, to
be recorded by ATI Sub with the U.S. Patent and Trademark Office evidencing the
transfer of the Technology to ATI Sub and (ii) all documentation pertaining to
the Technology not previously delivered to ATI or ATI Sub, including, without
limitation, copies of all correspondence to and from examining authorities
regarding the Technology, all patent and prior art searches and all
correspondence with any attorneys involving the preparation or prosecution of
patents relating to the Technology.
(c) After the Closing Date, Triton, Nurescell, ATI and ATI Sub
each agree to promptly perform any acts and execute and deliver any further
documents which may be reasonably requested in order to reflect the transactions
occurring on the Closing Date, including, but not limited to, each party to the
Assignment Agreement and the Mutual Release providing the other parties thereto
with a signed copy of such agreement; provided, however, that each party to such
agreements shall be bound thereby on and after the Closing Date even without
their signature thereon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
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3.01 Representations and Warranties by Nurescell to Triton. As an
inducement to Triton to enter into this Agreement and to consummate the
transactions contemplated herein, as of the Effective Date and the Satisfaction
Date, Nurescell hereby represents and warrants to Triton, and agrees, as
follows:
(a) That it is a corporation duly organized, validly existing
and in good standing in the jurisdiction where it was formed and it has the full
power and authority to own, lease and operate its properties and conduct the
business being conducted by it and is duly qualified to transact business and in
good standing in every jurisdiction in which the character of the business
conducted by it makes such qualification necessary.
(b) Except as set forth in the attached Schedule 3.01(b), its
execution, delivery and performance of this Agreement and each other document
provided for or referred to herein has been duly authorized and approved by all
requisite corporate action on its part. Neither the execution nor the delivery
of this Agreement and such other documents, nor the consummation of the
transactions contemplated hereby or thereby, nor compliance with or fulfillment
of the terms and provisions of this Agreement or such other documents, will
conflict with or result in a breach of the terms, conditions or provisions of or
constitute a default under (i) its organizational documents, (ii) any promissory
note of which it is the maker or guarantor, (iii) any law or administrative
regulation applicable to it or its properties or (iv) any indenture, agreement,
mortgage, judgment, order, award, decree or other instrument or restriction to
which it is a party or by which it is bound, or give any party with rights under
any such indenture, agreement, mortgage, judgment, order, award, decree or other
instrument or restriction the right to terminate, modify or otherwise change its
rights or obligations under such indenture, agreement, mortgage, judgment,
order, award, decree or other instrument or restriction. Except as set forth in
the attached Schedule 3.01(b), no authorization, approval or consent of, or
notice to or filing with, any person or entity or any governmental department,
commission, bureau or agency or other public body or authority is or will be
required for the execution, delivery or performance of this Agreement by it or
for the consummation by it of the transactions contemplated hereby. It has the
full power and authority to do and perform all acts and things required to be
done by it under this Agreement. All corporate acts and other proceedings
required to be taken by it or on its part to authorize it to carry out this
Agreement and such other agreements and instruments as are contemplated hereby
and the transactions contemplated hereby and thereby have been duly and properly
taken. This Agreement constitutes, and such other agreements and instruments
when duly executed (if required) and delivered by it will constitute, legal,
valid and binding obligations and will be enforceable against it in accordance
with their respective terms.
(c) ATI is the sole owner of the ATI Shares and, except for
(i) the ATI Shares, (ii) ATI Sub's option to acquire shares of Nurescell Common
Stock as set out in the Investment Agreement and (iii) the interests in the
Collateral, neither ATI nor ATI Sub owns or has any right to acquire any
interest in Nurescell.
(d) Except for the License Agreement, the Investment
Agreement, the Modification Agreement, the 2001 Restructure Agreement and the
ATI Sub Note (collectively, the "ATI Agreements") and this Agreement, there are
no written or oral agreements currently in effect or pending between Nurescell
and ATI and/or ATI Sub.
(e) The attached Exhibit "F" accurately reflects each of
Nurescell's accounts payable, other current liabilities, long-term liabilities
and contingent liabilities and obligations as of the Effective Date.
(f) Nurescell does not do business in Nevada and, as shown by
its stock ledger, Nurescell does not have more than 99 shareholders with
addresses in Nevada.
(g) All financial information contained in Nurescell' s Form
10-KSB for the fiscal year ended March 31, 2002 and Form 10-QSB for the quarter
ended September 30, 2002 (collectively, the "SEC Filings") is true and correct
in all material respects and there has been no material change in Nurescell's
financial condition from March 31, 2002 or September 30, 2002 to the Effective
Date. To its best knowledge, other than as set forth in the attached Schedule
3.01(g), it is not aware of any material actual or contingent liabilities of
Nurescell except as set forth in the SEC Filings.
(h) To the best knowledge of its executive officers, except as
set forth on Exhibit "F" or otherwise described in the SEC Filings, it is not
aware of (i) any pending or threatened claims by or against Nurescell by any
person or entity or (ii) any past occurrences which could reasonably be expected
to result in a claim against Nurescell.
(i) It has committed no act or omission which would cause any
person, firm, corporation or other entity to be entitled to any broker's or
finder's fee, commission, or other similar compensation with respect to the
execution and delivery of this Agreement or any related agreement, or with
respect to the consummation of the transactions contemplated herein.
(j) No representation or warranty by it herein or in any
document provided by it in connection herewith, and no information disclosed
herein or in any document supplied by it in connection herewith, contains any
untrue statement of a material fact or omits a material fact necessary to make
the statements contained herein or therein not misleading.
3.02 REPRESENTATIONS AND WARRANTIES BY TRITON TO NURESCELL, ATI AND ATI
SUB. As an inducement to Nurescell, ATI and ATI Sub to enter into this Agreement
and to consummate the transactions contemplated herein, as of the Effective Date
and the Satisfaction Date, Triton hereby represents and warrants to Nurescell,
ATI and ATI Sub, and agrees, as follows:
(a) That it is a limited partnership duly organized, validly
existing and in good standing in the State of Delaware.
(b) Its execution, delivery and performance of this Agreement
and each other document provided for or referred to herein has been duly
authorized and approved by all requisite action on its part. Neither the
execution nor the delivery of this Agreement and such other documents, nor the
consummation of the transactions contemplated hereby or thereby, nor compliance
with or fulfillment of the terms and provisions of this Agreement or such other
documents, will conflict with or result in a breach of the terms, conditions or
provisions of or constitute a default under (i) its organizational documents,
(ii) any promissory note of which it is the maker or guarantor, (iii) any law or
administrative regulation applicable to it or its properties or (iv) any
indenture, agreement, mortgage, judgment, order, award, decree or other
instrument or restriction to which it is a party or by which it is bound. No
authorization, approval or consent of, or notice to or filing with, any person
or entity or any governmental department, commission, bureau or agency or other
public body or authority is or will be required for the execution, delivery or
performance of this Agreement by it or for the consummation by it of the
transactions contemplated hereby. It has the full power and authority to do and
perform all acts and things required to be done by it under this Agreement. All
acts and other proceedings required to be taken by it or on its part to
authorize it to carry out this Agreement and such other agreements and
instruments as are contemplated hereby and the transactions contemplated hereby
and thereby have been duly and properly taken. This Agreement constitutes, and
such other agreements and instruments when duly executed (if required) and
delivered by it will constitute, legal, valid and binding obligations and will
be enforceable against it in accordance with their respective terms.
(c) It has committed no act or omission which would cause any
person, firm, corporation or other entity to be entitled to any broker's or
finder's fee, commission, or other similar compensation with respect to the
execution and delivery of this Agreement or any related agreement, or with
respect to the consummation of the transactions contemplated herein.
3.03 REPRESENTATIONS AND WARRANTIES BY ATI AND ATI SUB TO NURESCELL. As
an inducement to Nurescell to enter into this Agreement and to consummate the
transactions contemplated herein, as of the Effective Date and the Satisfaction
Date, ATI and ATI Sub each hereby severally, and not jointly, represent and
warrant to Nurescell, and agree, as follows:
(a) That it is a corporation duly organized, validly existing
and in good standing in the jurisdiction where it was formed.
(b) Its execution, delivery and performance of this Agreement
and each other document provided for or referred to herein has been duly
authorized and approved by all requisite corporate action on its part. Neither
the execution nor the delivery of this Agreement and such other documents, nor
the consummation of the transactions contemplated hereby or thereby, nor
compliance with or fulfillment of the terms and provisions of this Agreement or
such other documents, will conflict with or result in a breach of the terms,
conditions or provisions of or constitute a default under (i) its organizational
documents, (ii) any promissory note of which it is the maker or guarantor, (iii)
any law or administrative regulation applicable to it or its properties or (iv)
any indenture, agreement, mortgage, judgment, order, award, decree or other
instrument or restriction to which it is a party or by which it is bound. No
authorization, approval or consent of, or notice to or filing with, any person
or entity or any governmental department, commission, bureau or agency or other
public body or authority is or will be required for the execution, delivery or
performance of this Agreement by it or for the consummation by it of the
transactions contemplated hereby. It has the full power and authority to do and
perform all acts and things required to be done by it under this Agreement. All
corporate acts and other proceedings required to be taken by it or on its part
to authorize it to carry out this Agreement and such other agreements and
instruments as are contemplated hereby and the transactions contemplated hereby
and thereby have been duly and properly taken. This Agreement constitutes, and
such other agreements and instruments when duly executed (if required) and
delivered by it will constitute, legal, valid and binding obligations and will
be enforceable against it in accordance with their respective terms.
(c) It has committed no act or omission which would cause any
person, firm, corporation or other entity to be entitled to any broker's or
finder's fee, commission, or other similar compensation with respect to the
execution and delivery of this Agreement or any related agreement, or with
respect to the consummation of the transactions contemplated herein.
3.04 REPRESENTATIONS AND WARRANTIES BY NURESCELL TO ATI AND ATI SUB. As
an inducement to ATI and ATI Sub to enter into this Agreement and to consummate
the transactions contemplated herein, as of the Effective Date and the
Satisfaction Date, Nurescell hereby represents and warrants to ATI and ATI Sub,
and agrees, as follows:
(a) That it is a corporation duly organized, validly existing
and in good standing in the State of Nevada.
(b) Except as set forth in the attached Schedule 3.01(b), its
execution, delivery and performance of this Agreement and each other document
provided for or referred to herein has been duly authorized and approved by all
requisite corporate action on its part. Neither the execution nor the delivery
of this Agreement and such other documents, nor the consummation of the
transactions contemplated hereby or thereby, nor compliance with or fulfillment
of the terms and provisions of this Agreement or such other documents, will
conflict with or result in a breach of the terms, conditions or provisions of or
constitute a default under (i) its organizational documents, (ii) any promissory
note of which it is the maker or guarantor, (iii) any law or administrative
regulation applicable to it or its properties or (iv) any indenture, agreement,
mortgage, judgment, order, award, decree or other instrument or restriction to
which it is a party or by which it is bound. Except as set forth in the attached
Schedule 3.01(b), no authorization, approval or consent of, or notice to or
filing with, any person or entity or any governmental department, commission,
bureau or agency or other public body or authority is or will be required for
the execution, delivery or performance of this Agreement by it or for the
consummation by it of the transactions contemplated hereby. It has the full
power and authority to do and perform all acts and things required to be done by
it under this Agreement. All corporate acts and other proceedings required to be
taken by it or on its part to authorize it to carry out this Agreement and such
other agreements and instruments as are contemplated hereby and the transactions
contemplated hereby and thereby have been duly and properly taken. This
Agreement constitutes, and such other agreements and instruments when duly
executed (if required) and delivered by it will constitute, legal, valid and
binding obligations and will be enforceable against it in accordance with their
respective terms.
(c) Nurescell has good title to the Technology, free and clear
of all liens, security interests, claims, rights and encumbrances except those
presently existing in favor of ATI and/or ATI Sub.
(d) It has committed no act or omission which could cause any
person, firm, corporation or other entity to be entitled to any broker's or
finder's fee, commission, or other similar compensation with respect to the
execution and delivery of this Agreement or any related agreement, or with
respect to the consummation of the transactions contemplated herein.
3.05 REPRESENTATIONS AND WARRANTIES BY ATI AND ATI SUB TO
TRITON. As an inducement to Triton to enter into this Agreement and to
consummate the transactions contemplated herein, as of the Effective Date and
the Satisfaction Date, ATI and ATI Sub each hereby severally, and not jointly,
represent and warrant to Triton, and agree, as follows:
(a) That it is a corporation duly organized, validly existing
and in good standing in the jurisdiction where it was formed.
(b) Except as set forth in the attached Schedule 3.05(b), its
execution, delivery and performance of this Agreement and each other document
provided for or referred to herein has been duly authorized and approved by all
requisite corporate action on its part. Neither the execution nor the delivery
of this Agreement and such other documents, nor the consummation of the
transactions contemplated hereby or thereby, nor compliance with or fulfillment
of the terms and provisions of this Agreement or such other documents, will
conflict with or result in a breach of the terms, conditions or provisions of or
constitute a default under (i) its organizational documents, (ii) any promissory
note of which it is the maker or guarantor, (iii) any law or administrative
regulation applicable to it or its properties or (iv) any indenture, agreement,
mortgage, judgment, order, award, decree or other instrument or restriction to
which it is a party or by which it is bound. Except as set forth in the attached
Schedule 3.05(b), no authorization, approval or consent of, or notice to or
filing with, any person or entity or any governmental department, commission,
bureau or agency or other public body or authority is or will be required for
the execution, delivery or performance of this Agreement by it or for the
consummation by it of the transactions contemplated hereby. It has the full
power and authority to do and perform all acts and things required to be done by
it under this Agreement. All corporate acts and other proceedings required to be
taken by it or on its part to authorize it to carry out this Agreement and such
other agreements and instruments as are contemplated hereby and the transactions
contemplated hereby and thereby have been duly and properly taken. This
Agreement constitutes, and such other agreements and instruments when duly
executed (if required) and delivered by it will constitute, legal, valid and
binding obligations and will be enforceable against it in accordance with their
respective terms.
(c) ATI is the sole owner of 4,590,000 shares of Nurescell
Common Stock and, except for (i) those shares, (ii) ATI Sub's option to acquire
shares of Nurescell Common Stock as set out in the Investment Agreement and
(iii) the interests in the Collateral, neither ATI nor ATI Sub owns or has any
right to acquire any interest in Nurescell.
(d) Except for this Agreement and the ATI Agreements, there
are no written or oral agreements currently in effect or pending between
Nurescell and ATI and/or ATI Sub.
(e) It has committed no act or omission which would cause any
person, firm, corporation or other entity to be entitled to any broker's or
finder's fee, commission, or other similar compensation with respect to the
execution and delivery of this Agreement or any related agreement, or with
respect to the consummation of the transactions contemplated herein.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
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4.01 AGREEMENTS BY ATI AND ATI SUB. ATI and ATI Sub each agree that,
unless otherwise consented to in writing by Triton, during the period from the
Effective Date until the earlier of (i) the Closing Date or (ii) the date this
Agreement is terminated through no fault of ATI or ATI Sub:
(a) They shall not acquire, nor shall they cause or permit any
"affiliate" (as defined in Rule 405 under the Securities Act of 1933; provided
that Nurescell shall not be considered an affiliate) to acquire, any additional
shares of Nurescell or any rights with respect thereto.
(b) They shall not take any action, nor shall they cause or
permit any affiliate to take any action, against Nurescell with respect to the
ATI Agreements or otherwise.
(c) They shall not transfer any rights with respect to the ATI
Agreements or any shares or other interest in Nurescell.
(d) They shall each use their best efforts to perform or
fulfill all conditions and obligations to be performed or fulfilled by them
under this Agreement so that the transactions contemplated hereby shall be
consummated as soon as practicable. They also agree that they shall each use
their best efforts to cooperate with the other parties hereto so as to cause the
Transfer Conditions to occur as soon as practicable.
4.02 AGREEMENTS BY TRITON. Triton agrees that during the period from
the Effective Date until the earlier of (i) the Closing Date or (ii) the date
this Agreement is terminated through no fault of Triton, it shall (A) use its
best efforts to perform or fulfill all conditions and obligations to be
performed or fulfilled by it under this Agreement so that the transactions
contemplated hereby shall be consummated as soon as practicable, (B) use its
best efforts to cooperate with the other parties hereto so as to cause the
Transfer Conditions to occur as soon as practicable and (C) not take any action
against Nurescell with respect to the 1999 Note, the 2000 Note, the Registration
Agreements, the Securities Purchase Agreement dated as of December 15, 1999, the
Warrant to Purchase Common Stock dated December 15, 1999, the Securities
Purchase Agreement dated as of February 8, 2000, the Warrant to Purchase Common
Stock dated February 8, 2000, the Pledge and Security Agreement dated August 8,
2002, the $26,000 Secured Promissory Note dated August 8, 2002, the $7,650
Unsecured Promissory Note dated August 26, 2002, or otherwise.
4.03 AGREEMENTS BY NURESCELL. Nurescell agrees that during the period
from the Effective Date until the earlier of (i) the Closing Date or (ii) the
date this Agreement is terminated through no fault of Nurescell, Nurescell
shall:
(a) use its best efforts to perform or fulfill all conditions
and obligations to be performed or fulfilled by it under this Agreement so that
the transactions contemplated hereby shall be consummated as soon as
practicable;
(b) use its best efforts to cooperate with the other parties
hereto so as to cause the Transfer Conditions to occur as soon as practicable;
(c) not take any action, nor shall it cause or permit any
affiliate over which Nurescell has control to take any action, against ATI or
ATI Sub with respect to the ATI Agreements or otherwise;
(d) not transfer any rights with respect to the Technology,
the ATI Agreements or other interest in ATI;
(e) reasonably cooperate with ATI and ATI Sub in the filing
and prosecution of any patent application and other similar filings related to
the protection of the Technology; and
(f) not establish any liens, security interests, claims,
rights and encumbrances against title to the Technology except in favor of ATI
and/or ATI Sub.
4.04 Agreement as to Liabilities. Nurescell agrees that on and after
the Closing Date, unless otherwise specified in this Agreement or an Exhibit or
Schedule hereto, neither ATI nor ATI Sub shall be liable for any currently
existing or future liabilities of Nurescell.
ARTICLE V
TERMINATION, AMENDMENT AND SURVIVAL
-----------------------------------
5.01 TERMINATION. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned only:
(a) by mutual consent of each of the parties; or
(b) by one party unilaterally, if (i) there has been a
material breach by another party of any of its representations, warranties or
covenants set forth in this Agreement and such breach has not been cured (or
cure commenced followed by prompt completion) within twenty (20) days after
written notice thereof to such party and (ii) the party seeking termination is
not also in material breach of any of its representations, warranties or
covenants set forth in this Agreement.
5.02 TERMINATION REMEDIES. Notwithstanding termination of this
Agreement, in the event that the transactions described herein are not
consummated due to a material breach of this Agreement by a party, the other
parties shall have all rights and remedies at law and in equity available to it
for such breach, including the right to specific performance.
5.03 AMENDMENT AND WAIVER. No waiver or amendment of any provision of
this Agreement shall be effective unless in writing and signed by the party to
be bound. No delay or omission of any party hereto in exercising any right or
remedy hereunder shall constitute a waiver of such right or remedy, and no
waiver as to any obligation shall operate as a continuing waiver or as a waiver
of any subsequent breach.
5.04 SURVIVAL OF TERMS. The provisions of this Section, Articles III,
VI and VII and Sections 1.03, 2.03, 2.04(b) and 2.04(c) shall survive the
Effective Date and the Closing Date and continue in full force and effect at all
times thereafter. In addition, the provisions of this Section, Article VII
(except Section 7.02) and Section 5.02 shall survive the termination of this
Agreement and continue in full force and effect at all times thereafter (with
provisions of Article VI also surviving for purposes of Section 5.02).
ARTICLE VI
INDEMNIFICATION
---------------
6.01 INDEMNIFICATION. At all times after the Effective Date, upon
demand, each party shall indemnify, defend and hold each other applicable party
and such other party's directors, officers, employees, agents, consultants,
advisors, shareholders and affiliates (collectively, the "Indemnified Persons")
harmless from and against any and all costs and expenses (including reasonable
costs of investigation and attorneys' fees) and other losses, liabilities and
damages resulting from any breach by such party of any representation, warranty
or covenant in this Agreement or any Exhibit, Schedule or other document
provided in connection herewith.
6.02 INDEMNIFICATION PROCEDURE. No party shall be required to indemnify
any Indemnified Person with respect to any claim under Section 6.01 above unless
the Indemnified Person seeking indemnification (the "Indemnitee") shall notify
the other party (the "Indemnitor") of such claim, shall provide the Indemnitor
with a copy of any relevant documents with respect to such claim, and shall
otherwise make available to the Indemnitor all relevant material information
with respect to such claim; provided, however, that the Indemnitee's failure to
give notice or to provide copies of documents or to furnish relevant information
shall not constitute a defense (in whole or in part) to any claim by the
Indemnitee against the Indemnitor except and only to the extent that such
failure by the Indemnitee shall result in a material prejudice to the
Indemnitor. The Indemnitor, at its sole cost and expense, shall have the right
to defend against any claim brought by a third party, either in its own name or
in the name of the Indemnitee, as may be required, and the Indemnitee, at its
sole cost and expense, shall have the right to participate in such defense. The
Indemnitee shall not settle or compromise any third party claim unless it shall
first obtain the written consent of the Indemnitor (provided such consent is not
unreasonably withheld or delayed) or unless suit shall have been instituted
against the Indemnitee and the Indemnitor shall have failed, after the lapse of
a reasonable time after written notice to it of such suit, to take action to
defend the same or unless the Indemnitor shall have failed to notify the
Indemnitee in writing of its intention to contest the claim within twenty (20)
days of the giving of the above notice from the Indemnitee to the Indemnitor.
ARTICLE VII
MISCELLANEOUS
-------------
7.01 COSTS AND EXPENSES. Except as specified in Section 6.01 or 7.11,
all expenses (including attorney's and accountant's fees) in connection with (i)
the preparation and negotiation of this Agreement and the other agreements and
documents referred to herein and (ii) the consummation of the transactions
referred to herein or therein, shall be borne by the party who incurred them.
7.02 FURTHER ASSURANCES. From time to time after the Effective Date and
the Closing Date, each party agrees to promptly perform any acts and execute and
deliver any further documents which may be reasonably requested by another party
in order to consummate more effectively the transactions contemplated hereby.
7.03 NOTICES. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been sufficiently given if personally delivered, telecopied, sent
by overnight courier or deposited in the United States Mail, in a properly
stamped envelope, certified mail, return receipt requested, addressed to the
party to whom it is to be given, at the address set forth below. A notice or
other communication shall be deemed received (i) upon receipt, if personally
delivered, (ii) on the first business day after dispatch, if sent by overnight
courier, (iii) on the first business day after dispatch, if transmitted by
telecopy, and (iv) on the earlier of delivery (as evidenced by the signed return
receipt) or three (3) days after mailing, if sent by certified mail. A party
hereto may change its address by written notice in accordance with this Section.
(a) If to Nurescell, as specified in (b) or (c) below, as applicable.
(b) If to Triton, at:
220 Executive Center
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Telecopy number: (000) 000-0000
Attn: Xxxx X. Xxxxxxx
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
0000 Xxxxx Xxxx, #000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopy number: (000) 000-0000
(c) If to ATI and/or ATI Sub, at:
Advanced Technology Industries, Inc.
Xxxxxxxxxxxxx 00
Xxxxxx, Xxxxxxx 00000
Telecopy number: 011 49 30 201 77899
Attn: Xxxx-Xxxxxxx Xxxxxxxxx
ATI Nuklear AG
Xxxxxxxxxxxxx 00
Xxxxxx, Xxxxxxx 00000
Telecopy number: 011 49 30 201 77899
Attn: X.X. Xxxxxxx
with copies to:
Reboul, MacMurray, Xxxxxx & Xxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy number: (000) 000-0000
Attn: Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Telecopy number: (000) 000-0000
7.04 ENTIRE AGREEMENT; REPRESENTATIONS AND WARRANTIES. This Agreement,
together with its Exhibits, Schedules and other documents expressly referred to
herein, contains the entire agreement of the parties with respect to its subject
matter and supersedes all prior negotiations, agreements and understandings,
written or oral, with respect to such subject matter. Other than as set forth in
Article III hereof or otherwise contained herein or in any Exhibit, Schedule or
other document delivered pursuant hereto, the parties make no representations or
warranties of any kind, whether express or implied, in connection with the
transactions contemplated hereby.
7.05 SEVERABILITY. Should any part of this Agreement for any reason be
declared invalid or unenforceable, such decision shall not affect the validity
or enforceability of any remaining portion, which remaining portion shall remain
in force and effect, and the application of such part to persons or
circumstances other than those as to which it is held invalid or unenforceable,
and each other term, covenant and condition of this Agreement, shall be valid
and be enforced to the fullest extent permitted by law.
7.06 BINDING EFFECT; BENEFIT. This Agreement and all provisions hereof
shall be binding upon and shall inure only to the benefit of the parties hereto
and their respective successors and permitted assigns; provided, however, that
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto without the prior written consent of the
other parties. Except for Indemnified Persons under Article VI, this Agreement
is not intended to confer upon any person or entity other than the parties
hereto any rights or remedies hereunder.
7.07 HEADINGS. The descriptive headings of the Articles and Sections of
this Agreement are inserted for convenience only, do not constitute a part of
this Agreement and shall not affect in any way the meaning or interpretation of
this Agreement.
7.08 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, and all of which together shall be
deemed to be one and the same instrument.
7.09 APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California, without regard to the
conflicts of laws rules thereof. The parties agree that the exclusive venue for
resolution of any case or controversy arising out of or in connection with this
Agreement shall be Los Angeles County, California.
7.10 INTERPRETATION. Each party intends that this Agreement be deemed
and construed to have been jointly prepared by the parties. As a result, the
parties agree that any uncertainty or ambiguity existing herein shall not be
interpreted against any of them. The parties also intend that the rights and
remedies hereunder be cumulative, so that exercise of any one or more of such
rights or remedies shall not preclude the later or concurrent exercise of any
other rights or remedies.
7.11 ATTORNEYS' FEES. If any party to this Agreement shall bring any
action for any relief against any other party hereto arising out of or in
connection with this Agreement or any Exhibit, Schedule or other document in
connection herewith, in addition to all other remedies to which the prevailing
party may be entitled, the losing party shall be required to pay to the
prevailing party a reasonable sum for attorney's fees and costs incurred in
bringing such action and/or enforcing any judgment granted therein, all of which
shall be deemed to have accrued upon the commencement of such action and shall
be paid whether or not such action is prosecuted to judgment. Any judgment or
order entered in such action shall contain a specific provision providing for
the recovery of attorney's fees and costs incurred in enforcing such judgment.
For the purposes of this Section, attorney's fees shall include, without
limitation, fees incurred with respect to the following: (i) post-judgment
motions, (ii) contempt proceedings, (iii) garnishment, levy and debtor and third
party examinations, (iv) discovery and (v) bankruptcy litigation.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto on the Effective Date.
NURESCELL INC.
By:
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President
By:
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Secretary
TRITON PRIVATE EQUITIES FUND, L.P.
By: Triton Capital Management, L.L.C.,
General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx, Member
ADVANCED TECHNOLOGY INDUSTRIES, INC.
By:
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President
By:
----------------------------------
Secretary
ATI NUKLEAR AG
By:
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President
By:
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Secretary
The foregoing is hereby consented to as of the Effective Date
LTDNETWORK, INC.
By:
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Title:
