Stock Purchase Agreement - ATG Inc.
ATG INC.
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STOCK PURCHASE AGREEMENT
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This Agreement is made and dated as of, _________ ___, 19 between ATG, INC.,
a California Corporation with its principal office located at 47375 Fremont
Boulevard, Fremont, California 94538 (the "Company"), and __________________
(the "Purchaser").
1. Purchase and Sale of Shares.
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1.1 Sale and Issuance of Shares. Subject to the terms and conditions
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hereof, the Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase from the Company, shares (the "Shares") of Common Stock for
a cash purchase price of $_________. Such purchase of stock is for investment
purpose only.
1.2 Closing. The closing of the purchase and sale of the Shares
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hereunder (the "Closing") shall be held at the ATG Inc. office at 47375 Fremont
Blvd. on ______________________ or at such other time and place as is agreed by
the parties. (The date of the Closing is hereinafter referred to as the "Closing
Date"). At the Closing, the Company will deliver to the Purchaser a certificate
representing the Shares, which Shares shall be registered in the Purchaser's
name, upon the Purchaser's delivery to the Company of the purchase price
therefor by cashier's or certified check, in the amount of $__________ payable
to the order of the Company.
2. Definitions.
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For purposes of this Agreement: (a) The "Business" of the Company shall
mean the business, properties, prospects, assets, liabilities or condition
(financial or otherwise) of the Company or any Subsidiary, taken as a whole; (b)
"Material Adverse Event" shall mean an occurrence or occurrences having a
consequence that, individually or in the aggregate, either (i) adversely affects
ten percent (10%) or more of the Business of the Company, or (ii) is reasonably
foreseeable, has a reasonable likelihood of occurring, and if it were to occur
might adversely affect ten
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percent (10%) or more of the Business of the Company; and (c) "the Subsidiaries"
of the Company shall mean the companies listed on the Disclosure Schedule as
Subsidiaries of the Company including, without limitation, National Safety
Consultants, Inc., Allied Ecology Services, Inc. and ATG Richland Corporation.
3. Representations and Warranties of the Company.
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The Company represents and warrants to the Purchaser that, as of the date
of this Agreement, except as set forth on the attached Disclosure Schedule, or
set forth in the Financial Statements:
3.1 Organization and Standing. The Company and each of its Subsidiaries
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is a corporation duly organized and validly existing and is in good standing in
the jurisdiction of its incorporation, and is authorized in the jurisdiction of
its incorporation to exercise its corporate powers, rights and privileges. The
Company and each Subsidiary has all requisite corporate power and authority to
own and lease its property and conduct its business as presently conducted.
3.2 Authorization. All corporate action on the part of the Company and
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its officers, directors and shareholders that is necessary for the
authorization, execution and delivery of this Agreement, the Shareholders'
Agreement date as of the date hereof, among the Company and the signatories
thereto (the "Shareholders' Agreement"), the form of which is attached as
Exhibit A hereto, and any other agreements entered into by the Company in order
to fulfill the transactions contemplated by this Agreement (the Shareholders'
Agreement and such other agreements referred to collectively as the "Other
Agreements"), for the performance of the Company's obligations hereunder and
thereunder and for the issuance and delivery of the Shares, has been taken or
will be taken prior to the Closing. This Agreement and the Other Agreements,
when executed and delivered, shall constitute legal, valid and binding
obligations of the Company.
3.3 Capitalization.
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3.3.1. Authorized. The authorized capital stock of the Company
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consists of 5,000,000 shares of common stock, no par value ("Common Stock"). The
Common Stock has the rights and privileges set forth in the Articles.
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3.3.2. Issued. There are issued and outstanding __________ shares
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of Common Stock. A list of all the shareholders of the Company with the number
of shares owned by each shareholder as of the date hereof is set forth in the
Disclosure Schedule. All such issued and outstanding shares have been duly
authorized and validly issued, are fully paid and nonassessable and were issued
in compliance with all applicable state and federal laws concerning the issuance
of securities.
3.4 Subsidiaries. The Company owns the percentage of the capital stock
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specified opposite the name of each Subsidiary in the Disclosure Schedule. The
Company does not presently own or control, directly or indirectly, any equity
interest in any corporation, association or business entity other than its
Subsidiaries. Except as set forth in the Disclosure Schedule, the Company is
not, directly or indirectly, a participant in any joint venture or partnership.
3.5 Validity of Securities; Compliance with Security Laws. The Shares,
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when issued, sold and delivered in accordance with the terms of this Agreement
and the Articles, will be duly and validly issued, fully paid and nonassessable,
will be free and clear of any liens or encumbrances and will be issued in
compliance with applicable federal and state securities laws; provided, however,
that the Shares may be subject to restrictions on transfer under state and
federal securities laws and under the Shareholders' Agreement.
3.6 Governmental Consents. No consent, approval, order or authorization
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of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of the Company is required in connection with
the valid execution, delivery and performance of the Agreement and the Other
Agreements, except for the notification of change in ownership to be filed with
the Small Business Administration and filings required by applicable state
securities laws, all of which shall be properly and timely filed by the Company.
3.7 Compliance with Other Instruments. The execution, delivery and
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performance of this Agreement and the Other Agreements will not result in any
violation, be in conflict with or constitute, with or without the passage of
time or giving of notice, a default under, or require any consent or waiver
(which has not been obtained) under, any Contract (as such term is defined in
Section 3.12 below). The execution, delivery and performance of this Agreement
and the Other Agreements and the issuance and sale of the Shares will not result
in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
the properties or assets of the Company or any Subsidiary.
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3.8 Compliance With Laws; Permits. To the knowledge of the Company: (a)
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the Company and each of the Subsidiaries is in substantive compliance with all
governmental statutes, laws, ordinances, rules and regulations known to the
Company to be applicable to it or to any Subsidiary; (b) the execution, delivery
and performance of this Agreement and the issuance and sale of the Shares will
not result in any violation of any governmental statute, rule or regulation
applicable to the Company or any Subsidiary; (c) the Company and each Subsidiary
has all permits, licenses, orders and approvals of any federal, state, local or
foreign governmental or regulatory body (collectively, the "Permits") that are
material to or necessary in the conduct of its business; (d) all Permits are in
full force and effect, no violations have been recorded in respect of any such
Permits, and no proceedings are pending or threatened to revoke or limit any
such Permits.
3.9 Litigation. To the Company's knowledge, there is no action, suit,
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proceeding, or investigation (collectively, "Actions") pending or currently
threatened against the Company or any Subsidiary which questions the validity of
this Agreement or the Other Agreements or the right of the Company to enter into
such agreements or to consummate the transactions contemplated hereby and
thereby, or which might result, either individually or in the aggregate, in a
Material Adverse Event or any change in the current equity ownership of the
Company or any Subsidiary, nor is the Company aware that there is any reasonable
basis for the foregoing. The Disclosure Schedule lists all of the Actions to
which the Company or any Subsidiary is a party or to its knowledge is threatened
to be made a party or which to its knowledge are otherwise pending. To the
Company's knowledge, neither the Company nor any Subsidiary is a party or
subject to, and none of their assets are bound by, the provisions of any order,
writ, injunction, judgement or decree of any court or government agency or
instrumentality. The Disclosure Schedule lists all material Actions which the
Company or any Subsidiary intends to initiate.
3.10 Financial Statements.
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(a) The Company has delivered to the Purchaser its audited
consolidated balance sheet at December 31, _________, December 31, __________
and December 31, __________, a copy of which is attached as Exhibits B-1 and B-2
respectively, and its audited consolidated statements of income, of changes in
shareholder's equity and of changes in financial position for the years
then-ended (collectively, the "Financial Statements"). The Financial Statements
are complete and correct in all material respects and
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have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. The Financial
Statements fairly present the consolidated financial condition of the Company
and its subsidiaries as of the respective dates of the balance sheets contained
therein, and the statements of operations contained therein accurately present
the consolidated operating results of the Company and its subsidiaries during
the periods respectively indicated therein.
(b) All accounts receivable, if any, of the Company (including
those reflected on the unaudited balance sheet included in the Financial
Statements or acquired on or prior to the Closing Date) arose in the ordinary
and usual course of business of the Company, as the case may be, represent valid
obligations due to the Company and have been collected or are, to the Company's
knowledge, collectible in the ordinary and usual course of business in the
aggregate recorded amounts hereof in accordance with their terms.
3.11 Absence of Changes. Since the date of the most recent balance sheet
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included in the Financial Statements:
(a) Neither the Company nor its subsidiaries entered into any
transaction involving amounts in excess of $100,000 that was not in the ordinary
course of its business;
(b) There have been no events or conditions that, either
individually or in the aggregate, might constitute a Material Adverse Event;
(c) There has not been any change in the assets, liabilities or
financial condition or operations of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business which,
individually or in the aggregate, would not constitute a Material Adverse Event;
(d) Neither the Company nor its subsidiaries has declared or paid
any dividend or made any distribution on its capital stock, or redeemed,
purchased or otherwise acquired any of its capital stock;
(e) There have not been any loans made by the Company to its
employees, officers or directors other than advances of expenses made in the
ordinary course of business;
(f) There has not been any waiver by the Company of a right or of a
debt owed to it where the value of such right or debt is in excess of $100,000;
and
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3.12 Material Contracts and Commitments. The Disclosure Schedule lists
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(i) all of the Company's and each Subsidiary's contracts, pursuant to which
either the Company, a Subsidiary or another party thereto is obligated to pay in
excess of $300,000 or which require the Company's performance or payment beyond
1996, (ii) all licenses and pending applications for licenses from governmental
authorities (other than local business licenses) required by the Company in the
conduct of its business.
3.13 No Defaults. Neither the Company nor, to the Company's knowledge,
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any Subsidiary, is in violation of its Articles or Certificate of Incorporation,
bylaws or other charter document or, to the Company's knowledge, in material
default under any of the Contracts. To the Company's knowledge, no other party
to any of the Contracts is in material default thereunder.
3.14 Voting or Other Stock Agreements. There are no agreements or
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arrangements between the Company or any Subsidiary and any of the Company's
shareholders, or to the knowledge of the Company, between or among any of the
Company's shareholders, which grant special rights with respect to any shares of
the Company's capital stock or which in any way affect any shareholder's ability
or right freely to alienate or vote such shares.
3.15 Title to Property and Assets. The Company and each of its
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Subsidiaries has good and marketable title to its properties and assets, both
real and personal, and to all its leasehold interests, in each case free and
clear of all mortgages, liens, security interests and encumbrances, except (a)
as stated in the Financial Statements or in the notes thereto, (b) for liens for
current taxes not yet delinquent, (c) for liens imposed by law and incurred in
the ordinary course of business for obligations not yet due to carriers,
warehousemen, laborers, materialment and the like, (d) for liens in respect of
pledges or deposits under workers' compensation laws or similar legislation and
(e) for minor defects in title, none of which, either individually or in the
aggregate, materially interferes with the use of such property. The properties
and assets of the Company and each Subsidiary are in good condition and repair
in all material respects.
3.16 Employee Compensation Plans. Neither the Company nor any Subsidiary
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is a party to or bound by any currently effective deferred compensation
agreement, bonus plan, incentive plan or arrangement, profit sharing plan,
retirement agreement or other employee compensation agreement.
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3.17 Disclosure. No representation, warranty or statement by the Company
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in this Agreement or in any written statement or certificate furnished or to be
furnished to the Purchaser pursuant to this Agreement contains or will contain
any untrue statement of a material fact or, when taken together, any material
omission.
3.18 Transaction with Affiliates. Except for (i) transactions relating
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to purchases of shares of the Company's Common Stock, (ii) regular salary
payments and fringe benefits under the Company's standard compensation
arrangements, (iii) the transactions listed in the Disclosure Schedule and (iv)
the issuance and sale of the Shares pursuant to the terms and conditions of this
Agreement, none of the officers, employees or directors of the Company or any
Subsidiary or any member of their immediate families, or any other Affiliate of
the Company or, to the Company's knowledge, of any Subsidiary or any such
persons, are a party to any arrangement, transaction or business relationship
with the Company or any Subsidiary. There have been no assumptions or guarantees
by the Company or any Subsidiary of any obligations of such persons or
Affiliates. For purposes of this Agreement, the term "Affiliate" shall mean any
person or entity directly or indirectly controlling, controlled by, or under
common control with the Company or any Subsidiary, and for the purposes of this
definition, "control" (including with corrective meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied to
any person or entity, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of that person
or entity, whether through the ownership of voting securities or by contract or
otherwise.
3.19 Tax Returns and Audits. The Company and each of its Subsidiaries
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has duly prepared and timely filed all governmental tax returns required to be
filed by it and has paid or established adequate reserves in the Financial
Statements for the payment of all taxes, assessments, fees and charges shown on
such returns or on assessments received by the Company or any Subsidiary. No
deficiency assessment or proposed adjustment of the Company's or of any
Subsidiary's income taxes is pending.
3.20 Insurance. The Company and its Subsidiaries have, or will have, as
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of the Closing Date, fire, casualty and liability insurance policies, with
extended coverage, in such amounts and with such policy limits as are normal for
companies of similar size
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and engaged in a similar business. The Disclosure Schedule sets forth an
accurate and complete list of all policies of insurance maintained by the
Company, in effect of the Closing Date, indicating in each case, the category of
risks covered, the names of the underwriters and the policy limits.
3.21 Offering. Subject to the accuracy of the Purchaser's
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representations in Section 4 hereof, the sale and issuance of the Shares to be
issued in conformity with the terms of this Agreement constitute transactions
exempt from the registration requirements of section 5 of the Securities Act of
1933 (the "Act").
3.22 Minute Books. The minute books of the Company contain a complete
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summary of all meetings of directors and stockholders since the time of
incorporation of the Company and reflect all transactions referred to in such
minutes accurately in all material respects.
3.23 Special Status. The Company is a "small business concern owned and
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controlled by socially and economically disadvantaged individuals" within the
terms of Section 8 (a) of the Small Business Act [15 U.S.C.A. 637 (a)]. To the
knowledge of the Company, the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares will not result in any change
in the Company's status for purposes of Section 8 (a) of the Small Business Act
[15 U.S.C.A. 637(a)].
4. Representations, Warranties of the Purchaser and Restrictions on Transfer
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Imposed by the Act.
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4.1 Representations and Warranties. The Purchaser hereby represents and
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warrants to the Company as follows:
4.1.1. Authorization. Assuming due execution and delivery by the
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Company, this Agreement and any of the Other Agreements to which the Purchaser
is a party constitute legal, valid and binding obligations of the Purchaser.
4.1.2. Investment.
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(a) The Purchaser is aware that the Shares have not been
registered under the Act nor qualified under the California Securities Law on
the ground that no distribution or public offering of the Shares is to be
effected, and that in this connection the Company is relying in part on the
representations of the Purchaser set forth in this Section 4;
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(b) The Purchaser has been further advised that no public
market now exists for any of the securities issued by the Company and that a
public market may never exist for the Shares;
(c) The Purchaser is purchasing the Shares for his own
account and not with a view to, or for sale in connection with, any distribution
thereof;
(d) By reason of his business or financial experience, the
Purchaser has the capacity to protect his own interest inconnection with the
transactions contemplated hereunder;
(e) The Purchaser is aware of the Company's business
affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to acquire the
Shares; and
(f) The Purchaser is an Accredited Investor, as defined in
Rule 501 of Regulation D.
4.2 Transfer of Securities. None of the Shares shall be transferable
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except subject to the Shareholders' Agreement and upon the conditions specified
in this Section 4.2, which conditions are intended to insure compliance with the
provisions of the Act in respect to the transfer of such Shares.
4.2.1. Legend. Unless and until otherwise permitted by this
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Section 4.2, each certificate or other document evidencing any of the Shares
shall be endorsed with a legend substantially in the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 ("ACT"). SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS IN
ACCORDANCE WITH THE AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES AND
UNLESS PURSUANT TO A REGISTRATION STATEMENT UNDER THE ACT, OR IN THE OPINION OF
COUNSEL FOR THE COMPANY SUCH REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH
TRANSFER TO COMPLY WITH THE ACT."
4.2.2. Restrictions of Transfer. The Company shall not be required
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to register any transfer of Shares unless and until one of the following events
shall have occurred:
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(a) The Company shall have received a statement of the
circumstances surrounding the transfer and, if reasonably requested by the
Company, an opinion of counsel for the Purchaser, in form and substance
reasonably requested by the Company, an opinion of counsel for the Purchaser, in
form and substance reasonably acceptable to the Company and its counsel, stating
that the transfer is (i) exempt from registration under the Act as then in
effect, and the Rules and Regulations of the Securities and Exchange Commission
(the "Commission") thereunder, and (ii) with the California Commissioner of
Corporations; or
(b) The Shares are transferred pursuant to a registration
statement which has been filed with the Commission and has become effective.
Within five business days after delivery to the Company and its
counsel of the statement or the opinion described in clause (a) above, the
Company either shall deliver to the proposed transferor a statement to the
effect that such statement or opinion is not satisfactory in the reasonable
opinion of its counsel or shall authorize the Company's transfer agent to make
the requested transfer.
4.2.3 Termination of Registration and Removal of Legend. The
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restrictions on transfer imposed by this Section 4.2 shall cease and terminate
as to the Shares, when (i) such securities shall have been effectively
registered under the Act and sold by the holder thereof in accordance with such
registration, or (ii) an acceptable opinion as described in Section 4.2.2. (a)
states that all future transfers of such securities by the transferor or the
contemplated transferee would be exempt for registration under the Act. When
the restrictions on transfer contained in this Section 4.2 have terminated as
provided above, the holder of the securities as to which such restrictions shall
have terminated or the transferee of such holder shall be entitled to receive
promptly from the Company, without expense to him, new certificates not bearing
the legends set forth in Section 4.2.1.
4.3 Brokers or Finders. Other than the one described in the Disclosure
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Schedule, the Purchaser has not incurred and will not incur, directly, or
indirectly, any other liability for brokers' or finders' fees, agents'
commissions or other similar charges in connection with this Agreement or any of
the transactions contemplated hereby.
4.4 Financial Condition. The Purchaser has the financial capability to
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perform his obligations under this Agreement.
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5. Conditions to Obligations of Purchaser.
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The obligation of the Purchaser to purchase the Shares at the Closing is
subject to each of the following conditions having been fulfilled on or prior to
the Closing Date or waived by the Purchaser in accordance with the provisions of
Section 8.1 hereof;
5.1 Representations and Warranties Correct; Performance of Obligations.
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The representations and warranties made by the Company in Section 3 hereof shall
be true and correct when made, and shall be true and correct on the Closing Date
with the same force and effect as if they had been made on and as of said date;
no Material Adverse Event shall have occurred prior to the Closing Date.
5.2 Consents and Waivers. The Company shall have obtained any and all
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consents, permits and waivers and made all filings necessary or appropriate for
consummation of the transactions contemplated by this Agreement.
5.3 Shareholders' Agreement. The Shareholders' Agreement and its
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Amendment shall not have been executed and delivered by each party thereto in
substantially the form of Exhibit A hereto.
5.4 Legal Investment. At the time of the Closing, the purchase of the
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Shares by the Purchaser hereunder shall be legally permitted by all laws and
regulations to which the Purchaser and the Company are subject.
5.5 Satisfactory Proceedings. All corporate and legal proceedings taken
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by the Company in connection with the transactions contemplated by this
Agreement and all documents relating to such transactions shall be satisfactory
to the Purchaser.
6. Conditions to Obligation of the Company.
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The Company's obligation to issue, sell and deliver the Shares to the
Purchaser at the Closing is subject to the following conditions having been
fulfilled on or prior to the Closing Date or waived by the Company in accordance
with the provisions of Section 8.1 hereof:
6.1 Representations and Warranties. The representations and warranties
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made by the Purchaser in Section 4 hereof shall be true and correct when made,
and shall be true and correct on the Closing Date with the same force and effect
as if they had been made on and as of said date.
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6.2 Payment of Purchase Price. The Company shall have received from the
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Purchaser on or prior to the Closing Date, a cashier's or certified check, in
the amount of $_________, payable to the order of the Company.
7. Covenants of the Company.
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The Company hereby covenants and agrees as follows:
7.1 Information. The Company shall, subject to appropriate limitations
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to protect the confidentiality of such information, (i) furnish to the Purchaser
such information concerning the Company as the Purchaser may from time to time
reasonably request, including, without limitation, information as to the state
of development of the Company's products and services, (ii) offer the Purchaser
the right to visit the properties of the Company at reasonable times, to
interview key employees of the Company at their places of employment at
reasonable times and to examine the books of account of the Company.
7.2 Cooperation. The Company shall cooperate in supplying such
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information as may be reasonably requested by the Purchaser to complete and file
any information reporting forms presently or subsequently required by any
governmental agency in connection with the sale of the Shares.
7.3 Confidentiality. The Company agrees that, except as may be required
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by applicable law, neither it nor its directors, officers or employees will
disclose to any third party the names of the Purchaser, or any persons
affiliated with the Purchaser.
7.4 Transaction with Affiliates. The Company shall not enter into any
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arrangement transaction or business relationship with (i) any Subsidiary, (ii)
any officer, employee or director of the Company or any Subsidiary, or any
member of their immediate families, or (iii) any other Affiliates of the
Company, any Subsidiary or any such persons, unless such arrangement,
transaction or business relationship is at arms-length and for full and fair
consideration.
7.5 Use of Proceeds. The proceeds from the sale of the Shares shall be
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used by the Company only for the purposes stated in the Disclosure Schedule.
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7.6 Termination of Covenants. The covenants of the Company set forth in
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Section 7.1 shall be terminated and be of no further force or effect upon the
date when a registration statement filed by the Company under the Act, in
connection with the first underwritten public offering of its securities on Form
S-1, became effective.
7.7 Rule 144. The Company covenants that (i) at all times after the
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Company first becomes subject to the reporting requirements of Section 13 or 15
(d) of the Securities Exchange Act of 1934, the Company will use its best
efforts to comply with the current public information requirements of Rule 144
(c) (1); (ii) if prior to becoming subject to such reporting requirements an
over-the-counter market develops for the Common Stock, the Company will use its
best efforts to make publicly available the information required by Rule 144 (c)
(2); and (iii) at all such times as Rule 144 is available for use by the
Purchaser, the Company promptly will furnish the Purchaser upon request with all
information within the possession of the Company required for the preparation
and filing of Form 144, and (iv) file with the Commission in a timely manner all
reports and other documents required of the Company under the Act and the
Securities Exchange Act of 1934, as amended.
7.8 Piggy-Back Registration Rights.
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7.8.1 Notice of Piggyback Registration and Inclusion of the
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Shares. In the event the Company decides to register any share of the Common
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Stock in compliance with the Act, the Company will on each occasion: (i)
promptly give the Purchaser written notice thereof (which shall include a list
of the jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities laws); and
(ii) include in such registration (and any related qualification under blue sky
laws or other compliance), and in any underwriting involved therein, all the
Shares as specified in a written request delivered to the Company by the
Purchaser within 15 days after delivery of such written notice from the Company.
7.8.2 Underwriting in Piggyback Registration. If the registration
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of which the Company gives notice is for a registered public offering involving
an underwriting, the Company shall so advise the Purchaser as a part of the
written notice given pursuant to Section 7.8.1. In such event the right of
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the Purchaser to registration shall be conditioned upon such underwriting and
the inclusion of the Shares in such underwriting to the extent provided in this
Section 7.8. All shareholders proposing to distribute their shares of Common
Stock through such underwriting shall (together with the Company and the other
shareholders distributing their shares through such underwriting) enter into an
underwriting agreement with the underwriter's representative for such offering.
The Purchaser shall have the right to participate in the selection of the
underwriters for an offering pursuant to this Section 7.8.
7.9 No Dilution. From and after the Closing Date, the Company shall not
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issue any shares of its capital stock or any other securities, or grant any
rights, options, warrants, preemptive rights, conversion rights or other rights
or agreements for the purchase or acquisition from the Company of any shares of
its capital stock or any other securities, to any person or entity
(collectively, and "Event"), without (a) first granting to the Purchaser the
right to purchase or acquire such share or other securities, on the same terms
and conditions as those governing the rights granted to or agreements with such
other person or entity, so that the Purchaser may continue to hold, on a fully
diluted basis, the same percentage of equity interest in the Company, after
accounting for such Event as prior to accounting for such Event, or (b)
otherwise taking any and all steps necessary to ensure that, after accounting
for such Event, the Purchaser would continue to hold, on a fully diluted basis,
the same percentage of equity interest in the Company as prior to accounting for
such Event.
8. Miscellaneous.
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8.1 Waivers and Amendments. Any term of this Agreement may be amended,
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and the observance of any terms of this Agreement may be waived in any respect,
only with the written consent of the Purchaser and the Company. The Purchaser
shall have the absolute right to exercise or refrain from exercising any right
or rights that the Purchaser may have by reason of this Agreement, including,
without limitation, the right to consent to the waiver of any obligation of the
Company under this Agreement and to enter into an agreement with the Company to
amend or modify this Agreement.
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8.2 Governing Law. This Agreement shall be governed in all respects by
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the laws of the State of California applicable to agreements between California
residents entered into and to be performed entirely within California.
8.3 Survival. The representations, warranties, covenants and agreements
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made herein shall survive the execution of this Agreement and the Closing of the
transactions contemplated hereby. All statements as to factual matters
contained in any certificate, exhibit or other instrument delivered by or on
behalf of the Company pursuant hereto or in connection with the transactions
contemplated hereby shall be deemed to be the representations and warranties of
the Company hereunder as of the date of such certificate or instrument.
8.4 Successors and Assigns. The provisions hereof shall inure to the
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benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
8.5 Entire Agreement. This Agreement, the Other Agreements and the
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other documents delivered pursuant hereto and thereto constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
8.6 Notices, Etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon the seventh day following mailing by registered
air mail, postage prepaid, addressed (a) if to the Purchaser, at his address set
forth on the first page of this Agreement, or at such other address as he shall
have furnished to the Company in writing, and (b) if to the Company, to its
address set forth on the first page of this Agreement, or at such other address
as the Company shall have furnished to the Purchaser.
8.7 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any party hereto shall impair any such right, power
or remedy of such party or be construed to be a waiver thereof. Waiver by a
party of any term or condition of this Agreement hereto shall not be construed
as a waiver of a subsequent breach or failure of the same term or condition or a
waiver of any other term or condition contained in this Agreement.
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<PAGE>
8.8 Severability. If any provision of this Agreement is held to be
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invalid or unenforceable, it shall, to the extent possible, be modified so as to
carry out the intent of the parties to the extent possible, and the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
8.9 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
themselves or by their respective representatives thereunto duly authorized as
of the day and year first above written.
COMPANY: PURCHASER:
ATG INC., a California ____________________________
Corporation
By___________________________
Title________________________
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