EXHIBIT 4.1
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 Mitsui Create USA, Inc., a Delaware corporation with
offices at 1500 #B Xxxx Xxxxxxx Xxxx, Xxx Xxxxx Xxxxxxx, XX 00000-0000, (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.
(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 etnter 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: Mitsui Create USA, Inc., 1500 #B Xxxx Xxxxxxx
Xxxx, Xxx Xxxxx Xxxxxxx, XX 00000-0000, Attention: President, or at such other
address or addresses as may have been furnished to the Company in writing by
such Purchaser, with a copy to: Xxxxxx Xxxxxxxxx, Mitsui Create Inc., 0-0-0
Xxxxx, Xxxxxxxxxxx-xx, Xxxxxxxxxx 000-0000 Xxxxx.
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:
MITSUI CREATE USA, INC.
By: Xxxxxxxx Xxxxxx
----------------------------------
(Print Name)
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
(Signed Name)
Title: President
----------------------------------
(Position, if applicable)
12.
