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SCHEDULE 13D
Amendment No.
Amerigon Incorporated
common stock
Cusip # 03070L102
Filing Fee: Yes
Cusip # 03070L102
Item 1: Reporting Person - FMR Corp. - (Tax ID: 04-
2507163)
Item 4: PF
Item 6: Commonwealth of Massachusetts
Item 7: 550,000
Item 8: None
Item 9: 550,000
Item 10: None
Item 11: 550,000
Item 13: 7.80%
Item 14: HC
PREAMBLE
The filing of this Schedule 13D is not, and should not be
deemed to be, an admission that such Schedule 13D is
required to be filed. See the discussion under Item 2.
Item 1. Security and Issuer.
This statement relates to shares of the common stock,
$0.00 par value (the "Shares") of Amerigon Incorporated, a
California corporation (the "Company"). The principal
executive offices of the Company are located at 404 East
Huntington Drive, Monrovia, CA 91016.
Item 2. Identity and Background.
This statement is being filed by FMR Corp., a
Massachusetts Corporation ("FMR"). FMR is a holding company
one of whose principal assets is the capital stock of a
wholly-owned subsidiary, Fidelity Management & Research
Company ("Fidelity"), which is also a Massachusetts
corporation. Fidelity is an investment advisor which is
registered under Section 203 of the Investment Advisors Act
of 1940 and which provides investment advisory services to
more than 30 investment companies which are registered under
Section 8 of the Investment Company Act of 1940 and serves
as investment advisor to certain other funds which are
generally offered to limited groups of investors (the
"Fidelity Fund"). Fidelity Management Trust Company
("FMTC"), a wholly-owned subsidiary of FMR Corp. and a bank
as defined in Section 3(a)(6) of the Securities Exchange Act
of 1934, serves as trustee or managing agent for various
private investment accounts, primarily employee benefit
plans and serves as investment adviser to certain other
funds which are generally offered to limited groups of
investors (the "Accounts"). Various directly or indirectly
held subsidiaries of FMR are also engaged in investment
management, venture capital asset management, securities
brokerage, transfer and shareholder servicing and real
estate development. The principal offices of FMR, Fidelity,
and FMTC are located at 82 Devonshire Street, Boston,
Massachusetts 02109.
Members of the Edward C. Johnson 3d family are the
predominant owners of Class B shares of common stock of FMR
representing approximately 49% of the voting power of FMR.
Mr. Johnson 3d owns 12.0% and Abigail Johnson owns 24.5% of
the aggregate outstanding voting stock of FMR, and Mr.
Johnson 3d is the Chairman of FMR. The Johnson family group
and all other Class B shareholders have entered into a
shareholders' voting agreement under which all Class B
shares will be voted in accordance with the majority vote of
Class B shares. Accordingly, through their ownership of
voting common stock and the execution of the shareholders'
voting agreement, members of the Johnson family may be
deemed, under the Investment Comany Act of 1940, to form a
controlling group with respect to FMR. The business address
and principal occupation of Mr. Johnson 3d is set forth in
Schedule A hereto.
The Shares to which this statement relates are owned
directly by one of the Fidelity Funds, and two of the
Accounts.
The name, residence or business address, principal
occupation or employment and citizenship of each of the
executive officers and directors of FMR are set forth in
Schedule A hereto.
Within the past five years, none of the persons named
in this Item 2 or listed on Schedule A has been convicted in
any criminal proceeding (excluding traffic violations or
similar misdemeanors) or has been a party to any civil
proceeding and as a result thereof was or is subject to any
judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to
federal or state securities laws or finding any violations
with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On December 29, 1995, the Fidelity Fund that owns or
owned Shares purchased in the aggregate 220,000 Shares for
cash in the amount of $1,760,000 (see Item 5(c)). The
Fidelity Fund used its own assets in making such purchase
and no part of the purchase price is represented by borrowed
funds.
On December 29, 1995, one of the Accounts of FMTC that
own or owned Shares purchased in the aggregate 280,000
Shares for cash in the amount of approximately $2,240,000
(see Item 5(c)). The Accounts used their own assets in
making such purchase and no part of the purchase price is
represented by borrowed funds.
In addition, the Accounts of FMTC, which own or owned
Shares, purchased in the aggregate 50,000 Shares for cash in
the amount of approximately $528,125, including brokerage
commissions. The Accounts used their own assets in making
such purchase and no part of the purchase price is
represented by borrowed funds. The attached Schedule B sets
forth Shares purchased and/or sold since October 31, 1995.
The attached Schedule B sets forth Shares purchased and/or
sold for cash in open market transactions or with other
investment companies with the same or an affiliated
investment advisor since October 31, 1995.
Item 4. Purpose of Transaction.
The purpose of Fidelity and FMTC in having the Fidelity
Funds and the Accounts purchase Shares is to acquire an
equity interest in the Company in pursuit of specified
investment objectives established by the Board of Trustees
of the Fidelity Funds and by the investors in the Accounts.
Fidelity and FMTC, respectively, may continue to have
the Fidelity Funds and the Accounts purchase Shares subject
to a number of factors, including, among others, the
availability of Shares of sale at what they consider to be
reasonable prices and other investment opportunities that
may be available to the Fidelity Funds and Accounts.
Fidelity and FMTC, respectively, intend to review
continuously the equity position of the Fidelity Funds and
Accounts in the Company. Depending upon future evaluations
of the business prospects of the Company and upon other
developments, including, but not limited to, general
economic and business conditions and money market and stock
market conditions, Fidelity may determine to cease making
additional purchases of Shares or to increase or decrease
the equity interest in the Company by acquiring additional
Shares, or by disposing of all or a portion of the Shares.
Neither Fidelity nor FMTC has any present plan or
proposal which relates to or would result in (i) an
extraordinary corporate transaction, such as a merger,
reorganization, liquidation, or sale of transfer of a
material amount of assets involving the Company or any of
its subsidiaries, (ii) any change in the Company's present
Board of Directors or management, (iii) any material changes
in the Company's present capitalization or dividend policy
or any other material change in the Company's business or
corporate structure, (iv) any change in the Company's
charter or by-laws, or (v) the Company's common stock
becoming eligible for termination of its registration
pursuant to Section 12(g)(4) of the 1934 Act.
Item 5. Interest in Securities of Issuer.
FMR, Fidelity, and FMTC, beneficially own all 550,000
Shares.
(a) FMR beneficially owns, through Fidelity, as investment
advisor to the Fidelity Funds, 220,000 Shares, or
approximately 3.12% of the outstanding Shares of the
Company, and through FMTC, the managing agent for the
Accounts, 330,000 Shares, or approximately 4.68% of the
outstanding Shares of the Company. Neither FMR, Fidelity,
FMTC, nor any of its affiliates nor, to the best knowledge
of FMR, any of the persons name in Schedule A hereto,
beneficially owns any other Shares. The combined holdings
of FMR, Fidelity, and FMTC, are 550,000 Shares, or
approximately 7.80% of the outstanding Shares of the
Company.
(b) FMR, through its control of Fidelity, investment
advisor to Fidelity Copernicus Fund, L.P. ("Copernicus"), a
private investment limited partnership and the Fidelity Fund
that owns Shares, and Copernicus each has the sole
dispositive with respect to 220,000 Shares and sole power to
vote or direct the voting of 220,000 Shares owned by
Copernicus. FMR, through its control of FMTC, investment
manager to the Accounts, and the Accounts each has sole
dispositive power over 330,000 Shares and sole power to vote
or to direct the voting of 330,000 Shares.
(c) On December 29, 1995, one Fidelity Fund and one of the
Accounts acquired 220,000 and 280,000 Shares, respectively,
for $1,760,000 cash and $2,240,000 cash, respectively,
pursuant to a Stock Purchase Agreement dated December 29,
1995 with the Company (the "Stock Purchase Agreement"). A
copy of the Stock Purchase Agreement is filed as an Exhibit
hereto and is hereby incorporated herein by reference.
Except as set forth in herein or in Schedule B, neither FMR,
or any of its affiliates, nor, to the best knowledge of FMR,
any of the persons named in Schedule A hereto has effected
any transaction in Shares during the past sixty (60) days.
Item 6. Contract, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
Except as set forth herein, neither FMR nor any of its
affiliates nor, to the best knowledge of FMR, any of the
persons named in Schedule A hereto has any joint venture,
finder's fee, or other contract or arrangement with any
person with respect to any securities of the Company.
The Company and the Fidelity Fund and the Account that
purchased Shares pursuant to the Stock Purchase Agreement
are parties to a Registration Rights Agreement dated
December 29, 1995 obligating the Company to register the
Shares purchased pursuant to the Stock Purchase Agreement
under the Securities Act of 1933, as amended.
The Funds and Accounts may from time to time own debt
securities issued by the Company or its direct or indirect
subsidiaries, and may from time to time purchase and/or sell
such debt securitites.
Item 7. Material to be Filed as Exhibits.
Exhibit I - Stock Purchase Agreement.
This statement speaks as of its date, and no inference
should be drawn that no change has occurred in the facts set
forth herein after the date hereof.
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
FMR Corp.
DATE: January 5, 1996 By: /s/Arthur
Loring
Arthur Loring
Vice President-Legal
SCHEDULE A
The name and present principal occupation or employment of
each executive officer and director of FMR Corp. are set
forth below. The business address of each person is 82
Devonshire Street, Boston, Massachusetts 02109, and the
address of the corporation or organization in which such
employment is conducted is the same as his business address.
All of the persons listed below are U.S. citizens.
POSITION WITH PRINCIPAL
NAME FMR CORP. OCCUPATION
Edward C. Johnson 3d President, Chairman of the
Director, CEO Board and CEO, FMR
Chairman &
Mng. Director
J. Gary Burkhead Director President-Fidelity
Caleb Loring, Jr. Director, Director, FMR
Mng. Director
James C. Curvey Director, Sr. V.P., FMR
Sr. V.P.
William L. Byrnes Vice Chairman Vice Chairman, FIL
Director & Mng.
Director
Abigail P. Johnson Director Portfolio Mgr - Fidelity
Management & Research
Company
Robert C. Pozen Sr. V.P. & Gen'l Sr. V.P. & Gen'l
Counsel Counsel, FMR
David C. Weinstein Sr. Vice President Sr. Vice President
Administration Administration
Gerald M. Lieberman Sr. Vice Pres. - Sr. Vice Pres. -
Chief Financial Chief Financial
Officer Officer
Schedule B
Amerigon Incorporated
One Accounts(s) purchased Shares since October 31, 1995 at
the dates and at the prices set forth below. The
transactions were made for cash in open market transactions
or with other investment companies with the same or an
affiliated investment advisor.
DATE SHARES PRICE
01-03-95 50,000 $10.56
AMERIGON INCORPORATED
_________________________
STOCK PURCHASE AGREEMENT
_________________________
750,000 SHARES OF CLASS A COMMON STOCK,
NO PAR VALUE PER SHARE,
OF
AMERIGON INCORPORATED
Dated as of December 29, 1995
TABLE OF CONTENTS
Section Page
1. Agreement to Sell and Purchase the Common Stock 1
2. Closing of Sale of Shares 1
3. Conditions to Closing 2
3.1 Conditions Precedent to Obligations of the Purchaser on
the Closing Date 2
(a) Representations and Warranties 2
(b) Performance 2
(c) Compliance Certificate 2
(d) Opinion of Counsel 2
(e) Legal Investment 2
(f) Compliance With Securities Laws 2
(g) Proceedings and Documents 3
(h) Sale of Other Shares 3
(i) Registration Rights Agreement 3
(j) Related Matters 3
(k) No Adverse U.S. Legislation, Action or Decision 3
(l) Governmental and Third Party Permits, Consents, Etc.
4
(m) Secretary's Certificate 4
(n) Payment of Closing Fees 4
3.2. Conditions Precedent to Obligations of the Company on
the Closing Date 4
(a) Representations and Warranties 4
(b) Performance 4
(c) Compliance With Securities Laws 4
(d) Sale of Other Shares 5
(e) Related Matters 5
(f) No Adverse U.S. Legislation, Action or Decision 5
4. Representations and Warranties, Etc. 5
4.1. Organization and Qualification; Authority 5
4.2. Subsidiaries 6
4.3. Licenses 6
4.4. Corporate and Governmental Authorization; No
Contravention 6
4.5. Validity and Binding Effect 7
4.6. Capitalization 7
4.7. Litigation; Defaults 7
4.8. Outstanding Debt 8
4.9. No Material Adverse Change 8
4.10. Employee Programs 8
4.11. Private Offerings 10
4.12. Broker's or Finder's Commissions 11
4.13. Disclosure 11
4.14. Foreign Assets Control Regulation, Etc. 12
4.15. Investment Company Act 12
4.16. Public Utility Holding Company Act 12
4.17. Interstate Commerce Act 12
4.18. Environmental Regulation, Etc. 12
4.19. Properties and Assets 13
4.20. Insurance 14
4.21. Employment Practices 14
4.22. Financial Statements 15
4.23. Intellectual Property 15
4.24. Taxes 17
4.25. Transactions with Affiliates 18
4.26. Dividend Payments 18
5. Purchase for Investment; Source of Funds 18
6. Covenants 19
6.1 Issuance of Additional Shares in Exempt Transactions.
19
6.2 Other Issuances of Additional Shares. 20
6.3 Press Releases 21
7. Restrictions on Transfer 21
7.1. Restrictive Legends 21
7.2. Notice of the Proposed Transfer; Opinions of Counsel
22
8. Definitions 23
9. Miscellaneous 27
9.1. Indemnification; Expenses, Etc. 27
9.2. Survival of Representations and Warranties;
Severability 28
9.3. Amendment and Waiver 29
9.4. Notices. 29
9.5. Entire Agreement. 29
9.6. Successors and Assigns 29
9.7. Descriptive Headings 30
9.8. Satisfaction Requirement 30
9.9. GOVERNING LAW 30
9.10. Service of Process 30
9.11. Counterparts 31
9.12. No Adverse Interpretation of Other Agreements
31
9.13. WAIVER OF JURY TRIAL 31
SCHEDULES
SCHEDULE 4.1 -- Qualified Jurisdictions
SCHEDULE 4.2 -- Subsidiaries
SCHEDULE 4.6 -- Agreements Affecting Securities
SCHEDULE 4.7 -- Litigation; Defaults
SCHEDULE 4.8 -- Debt and Other Liabilities
SCHEDULE 4.9 -- Material Adverse Changes
SCHEDULE 4.10 -- ERISA
SCHEDULE 4.18 -- Environmental
SCHEDULE 4.19 -- Liens
SCHEDULE 4.20 -- Insurance
SCHEDULE 4.21 -- Employment Practices
SCHEDULE 4.23 -- Patents and Trademarks
SCHEDULE 4.24 -- Taxes
SCHEDULE 4.25 -- Transactions with Affiliates
SCHEDULE 4.26 -- Dividend Payments
EXHIBITS
EXHIBIT A -- Form of Opinion of Troy & Gould Professional
Corporation
EXHIBIT B -- Form of Registration Rights Agreement
AMERIGON INCORPORATED
404 E. Huntington Drive
Monrovia, California 91016
STOCK PURCHASE AGREEMENT dated as of December 29, 1995
between Amerigon Incorporated, a California corporation (the
"Company"), and the purchaser listed on the signature page
hereto (the "Purchaser"). Unless otherwise defined,
capitalized terms used in this Agreement are defined in
Section 8; references to a "Schedule" or an "Exhibit" are,
unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement; references to a "section" or a
"subdivision" are, unless otherwise specified, to a section
or a subdivision of this Agreement.
The Company in consideration of the mutual covenants
and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, agrees with the Purchaser as
follows:
1. Agreement to Sell and Purchase the Common Stock.
At the Closing provided for in Section 2, the Company will
issue and sell to the Purchaser and, subject to the terms
and conditions of this Agreement, the Purchaser will
purchase from the Company, the number of shares of the
Company's Class A Common Stock, no par value per share
("Common Stock"), specified opposite the Purchaser's name on
the signature page hereto at the purchase price of $8.00 per
share payable in cash by wire transfer of immediately
available funds. Contemporaneously with entering into this
Agreement, the Company is entering into separate stock
purchase agreements (the "Other Stock Purchase Agreements")
identical, except with respect to choice of law and the last
sentence of Section 9.6, with this Agreement with each of
the Purchasers other than the Purchaser (the "Other
Purchasers"), providing for the sale to each of the Other
Purchasers, at such Closing and at the purchase price set
forth above, of the number of shares of Common Stock
specified on the signature pages to the Other Stock Purchase
Agreements. The term "Shares" refers to the shares of
Common Stock to be purchased by the Purchaser under this
Agreement and the Other Purchasers under the Other Stock
Purchase Agreements.
2. Closing of Sale of Shares. The purchase and
delivery of the Shares to be purchased by the Purchasers
shall take place simultaneously at the offices of Goodwin,
Procter & Hoar, Exchange Place, Boston, Massachusetts, and
Latham & Watkins, 650 Town Center Drive, Costa Mesa,
California at a closing (the "Closing") on December 29, 1995
or at such other place or on such other date as the
Purchasers and the Company may agree upon (such date on
which the Closing shall have actually occurred, being
referred to herein as the "Closing Date"). At the Closing,
the Company will deliver or cause to be delivered to the
Purchaser the Shares to be purchased by it against payment
of the purchase price therefor. If at the Closing the
Company shall fail to tender to the Purchaser any of the
Shares to be purchased by it as provided in this Section 2,
or any of the conditions specified in Section 3 shall not
have been satisfied by the Company or waived by the
Purchaser, the Purchaser shall, at its election, be relieved
of all further obligations under this Agreement, without
thereby waiving any other rights it may have by reason of
such failure or such non-fulfillment.
3. Conditions to Closing.
3.1 Conditions Precedent to Obligations of the
Purchaser on the Closing Date. The Purchaser's obligation
to purchase and pay for the Shares to be sold to it at the
Closing is subject to the fulfillment prior to or at the
Closing of the following conditions, any or all of which may
be waived at the option of the Purchaser:
(a) Representations and Warranties. The
representations and warranties of the Company contained in
Section 4 hereof shall be true and correct in all material
respects when made and at the time of the Closing, after
giving effect to the sale of the Shares and the other
transactions contemplated to be consummated at the Closing
by this Agreement, except that any representations and
warranties that relate to a particular date or period shall
be true in all material respects as of such date or period.
(b) Performance. The Company shall have
performed and complied in all material respects with all
agreements and conditions contained in this Agreement
required to be performed or complied with prior to or at the
Closing.
(c) Compliance Certificate. The Company
shall have delivered to the Purchaser an Officers'
Certificate, dated the date of the Closing, certifying that
the conditions specified in Sections 3.1(a) and (b) have
been fulfilled.
(d) Opinion of Counsel. The Purchaser shall
have received from Troy & Gould Professional Corporation,
counsel for the Company, their favorable opinion
substantially in the form set forth in Exhibit A, addressed
to the Purchaser, dated the Closing Date and otherwise
satisfactory in substance and form to the Purchaser.
(e) Legal Investment. On the Closing Date,
the Purchaser's purchase of the Shares shall be permitted by
the laws and regulations of the jurisdiction to which the
Purchaser is subject (including, without limitation, Section
5 of the Securities Act), and shall not subject the
Purchaser to any tax, penalty, liability or other onerous
condition under or pursuant to any applicable law or
governmental regulation, and shall not be enjoined
(temporarily or permanently) under, prohibited by or
contrary to any injunction, order or decree applicable to
the Purchaser.
(f) Compliance With Securities Laws. The
offering, issuance and sale of the Shares under this
Agreement shall have complied with all applicable
requirements of federal securities laws and the Purchaser
shall have received evidence, if any, of such compliance in
form and substance satisfactory to the Purchaser.
(g) Proceedings and Documents. All
corporate and other proceedings contemplated by this
Agreement shall be satisfactory to the Purchaser and the
Purchasers' Counsel, and the Purchaser and the Purchasers'
Counsel shall have received all such counterpart originals
or certified or other copies of such documents as the
Purchaser or the Purchasers' Counsel may reasonably request.
(h) Sale of Other Shares. Concurrently with
the Closing, the Company shall have issued and sold to each
of the Other Purchasers, and each such Other Purchaser shall
have purchased from the Company, the Shares to be issued and
sold to each such Other Purchaser at the Closing as
specified in the applicable signature page of each of the
Other Stock Purchase Agreements.
(i) Registration Rights Agreement.
Simultaneously with or prior to the issuance and sale to the
Purchasers of the Shares to be purchased by the Purchasers
at the Closing, the Company and the Purchasers shall have
duly entered into a registration rights agreement
substantially in the form of Exhibit B (the "Registration
Rights Agreement"), the Purchasers shall have received
fully-executed counterparts of the Registration Rights
Agreement in such numbers reasonably requested by them, such
agreement shall be in full force and effect and no term or
condition thereof shall have been amended, modified or
waived.
(j) Related Matters. As of the Closing, the
Company's and its Subsidiaries' By-laws and Certificates of
Incorporation or documents equivalent thereto shall not have
been modified or amended since the date delivered by the
Company to the Purchaser.
(k) No Adverse U.S. Legislation, Action or
Decision. No legislation, order, rule, ruling or regulation
shall have been enacted or made by or on behalf of any
governmental body, department or agency of the United
States, nor shall any legislation have been introduced and
favorably reported for passage to either House of Congress
by any committee of either such House to which such
legislation has been referred for consideration, nor shall
any decision of any court of competent jurisdiction within
the United States have been rendered which, in the
Purchaser's reasonable judgment, could materially and
adversely affect any of the Shares or any part thereof as an
investment. There shall be no action, suit, investigation
or proceeding pending or threatened, against or affecting
the Purchaser, any of its properties or rights, or any of
its Affiliates, associates, officers or directors, before
any court, arbitrator or administrative or governmental body
which (i) seeks to restrain, enjoin, prevent the
consummation of or otherwise affect the transactions
contemplated by this Agreement, or (ii) questions the
validity or legality of any such transactions or seeks to
recover damages or to obtain other relief in connection with
any such transactions, and, to the Purchaser's knowledge,
there shall be no valid basis for any such action,
proceeding or investigation.
(l) Governmental and Third Party Permits,
Consents, Etc. The Company and its Subsidiaries shall have
duly applied for and obtained all approvals, orders,
licenses, consents and other authorizations (collectively,
the "Approvals") from each federal, state and local
government and governmental agency, department or body, or
pursuant to any agreement to which the Company or any of its
Subsidiaries is a party or to which any of them or any of
their assets is subject, which may be required in connection
with this Agreement.
(m) Secretary's Certificate. The Purchaser
shall have received a certificate, dated the Closing Date,
of the Secretary or Assistant Secretary of the Company,
certifying (i) that the Company's Charter Documents (as
appropriate) are true, complete and correct and resolutions
relating to the transactions contemplated hereby are true,
complete and correct, (ii) that there are no proceedings or
other action for dissolution, liquidation or reorganization
of the Company, (iii) as to the incumbency and specimen
signatures of officers who shall have executed instruments,
agreements and other documents in connection with the
transactions contemplated hereby, (iv) that certain
agreements, instruments and other documents are in the form
approved in the resolutions referred to in clause (i) above,
and (v) as to other matters, and with such other attachments
thereto, as Purchasers' Counsel may reasonably request,
which certificates and attachments thereto shall be
satisfactory in form and substance to such Purchaser.
(n) Payment of Closing Fees. The Company
shall have paid the fees, expenses and disbursements of
Purchasers' Counsel reflected in statements of such counsel
rendered prior to or on the Closing Date.
3.2. Conditions Precedent to Obligations of the
Company on the Closing Date. The Company's obligation to
issue the Shares at the Closing is subject to the
fulfillment prior to or at the Closing of the following
conditions, any or all of which may be waived at the option
of the Company:
(a) Representations and Warranties. The
representations and warranties of the Purchaser in Section 5
hereof shall be true and correct in all material respects
when made and at the time of the Closing, after giving
effect to the sale of the Shares and the other transactions
contemplated to be consummated at the Closing by this
Agreement, except that any representations and warranties
that relate to a particular date or period shall be true in
all material respects as of such date or period.
(b) Performance. The Purchaser shall have
performed and complied in all material respects with all
agreements and conditions contained in this Agreement
required to be performed or complied with prior to or at the
Closing.
(c) Compliance With Securities Laws. The
offering, issuance and sale of the Shares under this
Agreement shall have complied with all applicable
requirements of federal securities laws and the Company
shall have received evidence, if any, of such compliance in
form and substance satisfactory to the Company.
(d) Sale of Other Shares. Concurrently with
the Closing, the Company shall have issued and sold to each
of the Other Purchasers, and each such Other Purchaser shall
have purchased from the Company, the Shares to be issued and
sold to each such Other Purchaser at the Closing as
specified in the applicable signature page of each of the
Other Stock Purchase Agreements.
(e) Related Matters. At the Closing, the
Company shall have received payment in full for the
transactions consummated pursuant to this Agreement and the
Other Stock Purchase Agreements.
(f) No Adverse U.S. Legislation, Action or
Decision. No legislation, order, rule, ruling or regulation
shall have been enacted or made by or on behalf of any
governmental body, department or agency of the United
States, nor shall any legislation have been introduced and
favorably reported for passage to either House of Congress
by any committee of either such House to which such
legislation has been referred for consideration, nor shall
any decision of any court of competent jurisdiction within
the United States have been rendered which, in the Company's
reasonable judgment, could materially and adversely affect
any of the Shares or any part thereof as an investment.
There shall be no action, suit, investigation or proceeding
pending or threatened, against or affecting the Company, any
of its properties or rights, or any of its Affiliates,
associates, officers or directors, before any court,
arbitrator or administrative or governmental body which (i)
seeks to restrain, enjoin, prevent the consummation of or
otherwise affect the transactions contemplated by this
Agreement, or (ii) questions the validity or legality of any
such transactions or seeks to recover damages or to obtain
other relief in connection with any such transactions, and,
to the Company's knowledge, there shall be no valid basis
for any such action, proceeding or investigation.
4. Representations and Warranties, Etc. In order to
induce the Purchaser to purchase the Shares, the Company
represents and warrants that:
4.1. Organization and Qualification; Authority.
The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation, has full corporate power
and authority to own and lease its properties and carry on
its business as presently conducted, is duly qualified,
registered or licensed as a foreign corporation to do
business and is in good standing in each jurisdiction in
which the ownership or leasing of its properties or the
character of its present operations makes such
qualification, registration or licensing necessary, except
where the failure so to qualify or be in good standing would
not have a material adverse effect on the condition
(financial or otherwise), assets, business or results of
operations of (a "Material Adverse Effect" on) the Company
and its Subsidiaries on a consolidated basis. The Company
has heretofore delivered to Purchasers' Counsel complete and
correct copies of the certificate of incorporation or
articles of organization or equivalent organizational
document and of the by-laws or equivalent document of the
Company, each as amended to date and as presently in effect
(collectively, "Charter Documents"). A list of all
jurisdictions in which the Company is qualified, registered
or licensed to do business as a foreign corporation is
attached hereto as Schedule 4.1.
4.2. Subsidiaries. The Company's Subsidiaries are
set forth on Schedule 4.2 hereto. Each Subsidiary is a
corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, has full corporate power and authority to own
and lease its properties, and carry on its business as
presently conducted, is duly qualified, registered or
licensed as a foreign corporation to do business and is in
good standing in each jurisdiction in which the ownership or
leasing of its properties or the character of its present
operations make such qualification, registration or
licensing necessary, except where the failure so to qualify
or be in good standing would not have a Material Adverse
Effect on such Subsidiary. A list of all jurisdictions in
which each Subsidiary is qualified, registered or licensed
to do business as a foreign corporation is attached hereto
as Schedule 4.2. Except as disclosed on Schedule 4.2, the
Company owns, directly or indirectly, all of the outstanding
shares of Capital Stock of each of its Subsidiaries free of
any Lien, restriction (other than restrictions generally
applicable to securities under federal, provincial or state
securities laws) or encumbrance and said shares have been
duly issued and are validly outstanding.
4.3. Licenses. The Company and its Subsidiaries
hold all material licenses, franchises, permits, consents,
registrations, certificates and other approvals (including,
without limitation, those relating to environmental matters,
public and worker health and safety, buildings, highways or
zoning) (individually, a "License" and collectively,
"Licenses") required for the conduct of its business as now
being conducted, and is operating in compliance therewith,
except where the failure to hold any such License or to
operate in compliance therewith would not have a Material
Adverse Effect on the Company and its Subsidiaries on a
consolidated basis or on the Subsidiaries, individually.
Except as set forth on Schedule 4.18, the Company and its
Subsidiaries are in compliance with all laws, regulations,
orders and decrees applicable to it, except in each case
where the failure so to comply would not have a Material
Adverse Effect on the Company and its Subsidiaries on a
consolidated basis or on the Subsidiaries, individually, or
a Material Adverse Effect on the ability of the Company or
any of its Subsidiaries to perform on a timely basis any
obligation that it has or will have under any Transaction
Document to which it is a party.
4.4. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by
the Company and its Subsidiaries of the Transaction
Documents to which they are a party and all other
instruments or agreements to be executed in connection
herewith or therewith, and the issuance and sale to the
Purchasers of the Shares pursuant to this Agreement and the
Other Stock Purchase Agreements (i) are within the Company's
and Subsidiaries' respective corporate powers, having been
duly authorized by all necessary corporate action on the
part of the Company and each such Subsidiary, (ii) do not
require any License, authorization, approval, qualification
or formal exemption from, or other action by or in respect
of, or filing of a declaration or registration with, any
court, Governmental Authority, agency or official or other
Person (except as may be required, or has been obtained,
under the Securities Act or state securities or Blue Sky
laws), (iii) do not contravene or constitute a default under
or violation of any provision of applicable law or
regulation of any Governmental Authority, the Charter
Documents of the Company or any of its Subsidiaries, any
agreement (or require the consent of any Person under any
agreement that has not been obtained) to which the Company
or any of its Subsidiaries is a party, or any judgment,
injunction, order, decree or other instrument binding upon
the Company, any of its Subsidiaries or any of their
respective properties, except where such contravention,
default or violation would not have a Material Adverse
Effect on the Company and its Subsidiaries on a consolidated
basis or on the Subsidiaries, individually, (iv) and do not
and will not result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries.
4.5. Validity and Binding Effect. Each of the
Transaction Documents has been duly executed and delivered
by the Company and those Subsidiaries which are a party
thereto and is a valid and binding agreement of the Company
and its Subsidiaries, as applicable, enforceable against the
Company and such Subsidiaries, as applicable, in accordance
with its terms, except for (a) the effect upon the
Transaction Documents of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting the rights of creditors generally and (b)
limitations imposed by a court of competent jurisdiction
under general equitable principles upon the specific
enforceability of any of the remedies, covenants or other
provisions of the Transaction Documents and upon the
availability of injunctive relief or other equitable
remedies.
4.6. Capitalization. As of the Closing Date,
except as set forth on Schedule 4.6 hereto, there are no
outstanding subscriptions, options, warrants, rights,
convertible or exchangeable securities or other agreements
or commitments of any character obligating the Company or
its Subsidiaries to issue any securities. As of the Closing
Date, except as set forth on Schedule 4.6, there are no
voting trusts or other agreements or understandings to which
the Company or its Subsidiaries is a party with respect to
the voting of the Capital Stock of the Company or the
Subsidiaries. Except as set forth on Schedule 4.6 or as
contemplated by the Registration Rights Agreement, neither
the Company nor any of its Subsidiaries has entered into any
agreement to register its equity or debt securities under
the Securities Act.
4.7. Litigation; Defaults. Except as set forth on
Schedule 4.7 or Schedule 4.18, there is no action, suit,
proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company,
any of its Subsidiaries, or any properties of any of the
foregoing, before or by any court or arbitrator or any
governmental body, agency or official which (individually or
in the aggregate) could reasonably be expected to (i) have a
Material Adverse Effect on the Company and its Subsidiaries
on a consolidated basis or on the Subsidiaries,
individually, or (ii) impair the ability of the Company or
any Subsidiary to perform fully on a timely basis any
material obligation which the Company or such Subsidiary has
or will have under any Transaction Document to which the
Company or such Subsidiary is a party. Except as set forth
on Schedule 4.7 or Schedule 4.18, neither the Company nor
any of its Subsidiaries is in violation of, or in default
under (and there does not exist any event or condition
which, after notice or lapse of time or both, would
constitute such a default under), any term of its Charter
Documents, or of any term of any agreement, instrument,
judgment, decree, order, statute, injunction, governmental
regulation, rule or ordinance (including without limitation,
those relating to zoning, city planning or similar matters)
applicable to the Company or any of its Subsidiaries or to
which the Company or any of its Subsidiaries is bound, or to
any properties of the Company or any of its Subsidiaries,
except in each case to the extent that such violations or
defaults, individually or in the aggregate, would not
reasonably (a) affect the validity of any Transaction
Document, (b) have a Material Adverse Effect on the Company
and its Subsidiaries on a consolidated basis or on the
Subsidiaries, individually, or (c) impair the ability of the
Company or any of its Subsidiaries to perform fully on a
timely basis any material obligation which the Company or
such Subsidiary has or will have under any Transaction
Document to which the Company or such Subsidiary is a party.
4.8. Outstanding Debt. Except as set forth in the
Financial Statements or on Schedule 4.8 hereto, at and as of
the Closing Date, neither the Company nor any of its
Subsidiaries will have outstanding any debt for borrowed
money, or obligations or liabilities evidenced by bonds,
debentures, notes or other similar instruments or under
capital leases other than short-term debt incurred in the
ordinary course of business. Schedule 4.8 contains a
complete and accurate list of all material guarantees,
assumptions, purchase agreements and similar agreements and
arrangements whereby the Company or any of its Subsidiaries
is or may become directly or indirectly liable or
responsible for the indebtedness or other obligations of
another Person other than the Company or any of its
Subsidiaries, except for negotiable instruments endorsed for
collection or deposit in the ordinary course of its
business, identifying, with respect to each of the
respective parties, amounts and maturities.
4.9. No Material Adverse Change. Except as set
forth in Schedule 4.9, since September 30, 1995, there has
been (i) no material adverse change in the condition
(financial or other), assets, business, or results of
operations of the Company or any of its Subsidiaries, (ii)
no obligation or liability (contingent or other) incurred by
the Company or any of its Subsidiaries, other than
obligations and liabilities incurred in the ordinary course
of business, and no mortgage, encumbrance or Lien placed on
any of the properties of the Company or any of its
Subsidiaries which remains in existence on the Closing Date,
and (iii) no acquisition or disposition of any material
assets by the Company or any of its Subsidiaries (or any
contract or arrangement therefor), or any other material
transaction, otherwise than for fair value in the ordinary
course of business.
4.10. Employee Programs. Schedule 4.10 sets
forth a list of every Employee Program maintained by the
Company or any Current Affiliate at any time during the six-
year period ending on the Closing Date or with respect to
which a liability of the Company or an Affiliate exists.
Each Employee Program (other than a Multiemployer Plan)
which has been maintained by the Company during the six-year
period ending on the Closing Date and which has been
intended to qualify under Section 401(a) or Section
501(c)(9) of the Code has received a favorable determination
or approval letter from the Internal Revenue Service
regarding its qualification under such section or the
remedial amendment period under Section 401(b) of the Code
has not yet expired with respect to such Employee Program
and, to the knowledge of the Company, nothing has occurred
that would adversely affect such qualification since the
date of such letter or application for a determination or
approval letter has been timely made and to the knowledge of
the Company, no reason exists why a favorable determination
or approval shall not be granted. Except as set forth on
Schedule 4.10, the Company does not know of any failure of
any party to comply with any laws applicable with respect to
the Employee Programs that have been maintained by the
Company or any Current Affiliate, and no such failure will
result from completion of the transactions contemplated
hereby. With respect to any Employee Program ever
maintained by the Company or an Affiliate, there has been no
"prohibited transaction," as defined in Section 406 of ERISA
or Code Section 4975, or breach of any duty under ERISA or
other applicable law or any agreement which in any such case
could subject the Company to material liability either
directly or indirectly (including, without limitation,
through any obligation of indemnification or contribution)
for any damages, penalties, or taxes, or any other loss or
expense. No litigation or governmental administrative
proceeding (or investigation) or other proceeding (other
than those relating to routine claims for benefits) is
pending or threatened with respect to any such Employee
Program (other than a Multiemployer Plan).
The Company and its Current Affiliates have not
incurred any liability under title IV of ERISA which has not
been paid in full prior to the Closing. Neither the Company
nor any of its Current Affiliates is liable for any material
"accumulated funding deficiency" (whether or not waived)
with respect to any Employee Program ever maintained by the
Company or any Affiliate and subject to Code Section 412 or
ERISA Section 302. With respect to any Employee Program
subject to title IV of ERISA, there has been no (and the
transactions contemplated by this Agreement will not result
in any) (i) "reportable event," within the meaning of ERISA
Section 4043 or the regulations thereunder (for which the
notice requirement is not waived under 29 C.F.R. Part 2615)
or (ii) other event or condition which presents a material
risk of plan termination or any other event that may cause
the Company or any Current Affiliate to incur material
liability or have a material Lien imposed on its assets
under title IV of ERISA. All payments and/or contributions
required to have been made by the Company and its Current
Affiliates (under the provisions of any agreements or other
governing documents or applicable law) with respect to all
Employee Programs subject to title IV of ERISA ever
maintained by the Company or any Affiliate, for all periods
prior to the Closing, have been timely made. Except as
described on Schedule 4.10, no Employee Program maintained
by the Company or an Affiliate and subject to title IV of
ERISA (other than a Multiemployer Plan) has any "unfunded
benefit liabilities" within the meaning of ERISA Section
4001(a)(18), as of the Closing Date. With respect to
Multiemployer Plans maintained by the Company or any
Affiliate, Schedule 4.10 states the aggregate amount of
withdrawal liability or other termination liability that
would be incurred by the Company or any Affiliate if there
were a withdrawal from any such plan as determined by the
most recent withdrawal liability calculation prepared by
such plan. Except as disclosed on Schedule 4.10, none of
the Employee Programs which is a welfare plan maintained by
the Company or any Affiliate provides health care or any
other non-pension benefits to any employees after their
employment is terminated (other than as required by part 6
of subtitle B of title I of ERISA or comparable statutes or
regulations) or has ever promised to provide such
post-termination benefits.
For purposes of this section:
(i) "Employee Program" means (A) any employee
benefit plan within the meaning of Section 3(3) of ERISA and
employee benefit plans (such as foreign or excess benefit
plans) which are not subject to ERISA, and (B) any stock
option plans, bonus or incentive award plans, severance pay
policies or agreements, deferred compensation arrangements,
supplemental income arrangements, vacation plans, and all
other employee benefit plans, agreements, and arrangements
not described in (A) above, and (C) any trust used to fund
benefits under the foregoing maintained by the Company or
any Affiliate.
(ii) An entity is an "Affiliate" of the Company if
it would have ever been considered a single employer with
the Company under ERISA Section 4001(b) or part of the same
"controlled group" as the Company for purposes of ERISA
Section 302(d)(8)(C); an entity is a "Current Affiliate" if
it currently would be considered a single employer with the
Company under ERISA Section 4001(b) or part of the same
"controlled group" as the Company for purposes of ERISA
Section 302(d)(8)(C); and each reference to the Company
includes the Subsidiaries.
(iii) An entity "maintains" an Employee
Program if such entity sponsors, contributes to, or provides
benefits under such Employee Program, or has any obligation
(by agreement or under applicable law) to contribute to or
provide benefits under such Employee Program, or if such
Employee Program provides benefits to or otherwise covers
employees of such entity (or, in respect of such employees,
their spouses, dependents, or beneficiaries).
(iv) "Multiemployer Plan" means a pension or non-
pension employee benefit plan to which more than one
employer contributes and which is maintained pursuant to one
or more collective bargaining agreements.
4.11. Private Offerings. No form of general
solicitation or general advertising including, but not
limited to, advertisements, articles, notices or other
communications, published in any newspaper, magazine or
similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any
general solicitation or general advertising, was used by the
Company or any of its Subsidiaries or any of the Company's
or such Subsidiary's representatives, or, to the knowledge
of the Company, any other Person acting on behalf of the
Company or any of its Subsidiaries, in connection with the
offering of the Shares being purchased under this Agreement
or under any other Transaction Document. Neither the
Company, nor any of its Subsidiaries nor any Person acting
on the Company's or such Subsidiary's behalf has directly or
indirectly offered the Shares, or any part thereof or any
other similar securities or the securities being purchased
under any Transaction Document, for sale to, or sold or
solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with
any Person or Persons other than the Purchasers and other
investors who the Company reasonably believed had such
knowledge and experience in financial and business matters
that they were capable of evaluating the merits and risks of
purchasing the Shares. The Company further represents to
the Purchaser that, assuming the accuracy of the
representations of the Purchaser and the Other Purchasers as
set forth in Section 5 hereof, neither the Company, nor any
of its Subsidiaries nor any Person acting on the Company's
or such Subsidiary's behalf has taken or will take any
action which would subject the issue and sale of the Shares
or the securities being purchased under any Transaction
Document to the provisions of Section 5 of the Securities
Act, except as contemplated by the Registration Rights
Agreement.
4.12. Broker's or Finder's Commissions. In
addition to and not in limitation of any other rights
hereunder, the Company and the Subsidiaries agree that they
will indemnify and hold harmless the Purchaser from and
against any and all claims, demands or liabilities for
broker's, finder's, placement agent's or other similar fees
or commissions and any and all liabilities with respect to
any taxes (including interest and penalties) payable or
incurred or alleged to have been incurred by the Company or
any of its Subsidiaries or any Person acting or alleged to
have been acting on the Company's or such Subsidiary's
behalf, in connection with this Agreement, the issuance or
sale of the Shares, or any other transaction contemplated by
any of the Transaction Documents.
4.13. Disclosure.
(a) As of the Closing Date, there is no
untrue statement of material fact in this Agreement or in
any of the other Transaction Documents, and no omission of a
material fact necessary in order to make the statements
contained herein and therein not materially misleading in
light of the circumstances in which such statements were
made.
(b) There is no material fact known to the
Company which the Company has not disclosed to the Purchaser
or Purchasers' Counsel in writing which has or, insofar as
the Company can reasonably foresee, may have or will have a
Material Adverse Effect on the Company and its Subsidiaries
on a consolidated basis or on the Subsidiaries,
individually, or a Material Adverse Effect on the ability of
the Company or any of its Subsidiaries to perform its
obligations under any of the Transaction Documents to which
it is a party or in respect of the Shares or any document
contemplated hereby or thereby.
4.14. Foreign Assets Control Regulation, Etc.
Neither the issue and sale of the Shares by the Company nor
its use of the proceeds thereof as contemplated by this
Agreement will violate the Foreign Assets Control
Regulations, the Transaction Control Regulations, the Cuban
Assets Control Regulations, the Foreign Funds Control
Regulations, the Iranian Assets Control Regulations, the
Nicaraguan Trade Control Regulations, the Libyan Sanctions
Regulations, the Soviet Gold Coin Regulations, the
Panamanian Transactions Regulations, the Haitian
Transactions Regulations, or the Iraqi Sanctions Regulations
of the United States Treasury Department (31 C.F.R.,
Subtitle B, Chapter V, as amended) or Executive Orders 12722
and 12724 (transactions with Iraq).
4.15. Investment Company Act. The Company is
not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act"),
and is not deemed to be an "investment company" for purposes
of Section 12(d)(1) of the 1940 Act.
4.16. Public Utility Holding Company Act.
Neither the Company nor any of its Subsidiaries is a
"holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," as such terms
are defined in the Public Utility Holding Company Act of
1935, as amended.
4.17. Interstate Commerce Act. Neither the
Company nor any of its Subsidiaries is, nor will be, a "rail
carrier," or a Person controlled by or affiliated with a
"rail carrier," within the meaning of Title 49, U.S.C.
Neither the Company nor any of its Subsidiaries is a
"carrier" or other Person to which 49 U.S.C. Section
11301(b)(1) is applicable.
4.18. Environmental Regulation, Etc.
(a) Except as set forth on Schedule 4.18, to
the knowledge of the Company, each of the Company and its
Subsidiaries (i) has no liability under any Environmental
Law or common law cause of action relating to or arising
from environmental conditions which would have a Material
Adverse Effect on the Company and its Subsidiaries on a
consolidated basis or on the Subsidiaries, individually, and
any property owned, operated, leased, or used by the Company
and its Subsidiaries and any facilities and operations
thereon comply with and will continue to comply with all
applicable Environmental Laws, except to the extent that any
failure to comply would not have a Material Adverse Effect
on the Company and its Subsidiaries on a consolidated basis
or on the Subsidiaries, individually; (ii) has never entered
into or been subject to any judgment, consent decree,
compliance order, or administrative order with respect to
any environmental or health and safety matter or received
any request for information, notice, demand letter,
administrative inquiry, or formal or informal complaint or
claim with respect to any environmental or health and safety
matter or the enforcement of any Environmental Law; and
(iii) has no reason to believe that any of the items
enumerated in clause (ii) of this paragraph will be
forthcoming.
(b) Except as set forth on Schedule 4.18, to
the knowledge of the Company: (i) each of the Company and
its Subsidiaries has never and currently does not expect to
generate, transport, use, store, treat, dispose of, or
manage any Hazardous Waste, except in accordance with
applicable Environmental Laws; (ii) the Company is not aware
of and has not caused any Release or Threat of Release of a
Hazardous Material at any site presently or formerly owned,
operated, leased, or used by the Company or any of its
Subsidiaries; (iii) the Company and its Subsidiaries have
never had Hazardous Material transported from any site
presently or formerly owned, operated, leased, or used by
the Company or any of its Subsidiaries for treatment,
storage, or disposal at any other place, except in
accordance with applicable Environmental Laws; (iv) the
Company and its Subsidiaries do not presently own, operate,
lease, or use any site on which underground storage tanks
are or were located; (v) the Company and its Subsidiaries
have never placed underground tanks on any site owned,
operated, leased or used by the Company or any of its
Subsidiaries; (vi) the Company and its Subsidiaries have
never removed underground tanks from any site presently or
formerly owned, operated, leased or used by the Company or
any of its Subsidiaries; (vii) the Company and its
Subsidiaries have never had a Lien imposed by any
Governmental Authority on any property, facility, machinery,
or equipment owned, operated, leased, or used by the Company
or any of its Subsidiaries in connection with the presence
of any Hazardous Material.
4.19. Properties and Assets. The Company and
its Subsidiaries have good record and marketable fee title
to all real Property and all other Property and assets,
whether tangible or intangible, owned by them and reasonably
necessary in the conduct of business of the Company or such
Subsidiaries, except defects in title which do not and will
not have a Material Adverse Effect on the Company and its
Subsidiaries on a consolidated basis or on the Subsidiaries,
individually. All of the leases necessary in any material
respect for the operation of their respective properties and
assets, under which the Company or any of its Subsidiaries
holds any Property or assets, real or personal, are valid,
subsisting and enforceable and afford peaceful and
undisturbed possession of the subject matter of the lease,
and no material default by the Company or any of its
Subsidiaries exists under any of the provisions thereof.
All buildings, machinery and equipment of the Company and
its Subsidiaries are in good repair and working order,
except for ordinary wear and tear that would not have a
Material Adverse Effect on the Company and its Subsidiaries
on a consolidated basis or on the Subsidiaries,
individually. All material current uses of such Property or
assets of the Company and its Subsidiaries are permitted as
of right under all appropriate laws, regulation and
ordinances and no such law, regulation or ordinance
interferes with such current or proposed uses. To the
knowledge of the Company, there is no pending or formally
proposed change in any such laws, regulations and ordinances
which would have a Material Adverse Effect on the Company
and its Subsidiaries on a consolidated basis or on the
Subsidiaries, individually. Except as set forth on Schedule
4.19, no condemnation proceeding is pending or, to the
knowledge of the Company, threatened against the Company or
any of its Subsidiaries. All Property and assets of any
kind (real or personal, tangible or intangible) of the
Company and its Subsidiaries are free from all Liens except
for (i) Liens which would not have a Material Adverse Effect
on the Company and its Subsidiaries on a consolidated basis
or on the Subsidiaries, individually; and (ii) Liens
disclosed on Schedule 4.19 hereto. Neither the Company nor
any of its Subsidiaries has signed any material financing
statement, as debtor or lessee, or any security agreement
authorizing any secured party thereunder to file any such
financing statement.
4.20. Insurance. A list of all insurance
policies and fidelity bonds covering the assets, business,
equipment, properties, operations, employees, officers and
directors under which the Company or any of its Subsidiaries
may derive any material benefit is set forth on Schedule
4.20 hereof. There is no claim by the Company or any of its
Subsidiaries pending under any of such policies or bonds as
to which coverage has been questioned, reserved, denied or
disputed by the underwriters of such policies or bonds or
their agents where such question, reservation, denial or
dispute would have a Material Adverse Effect on the Company
and its Subsidiaries on a consolidated basis or on the
Subsidiaries, individually. All premiums due and payable
under all such policies and bonds have been paid, and the
Company and its Subsidiaries are otherwise in full
compliance with the terms and conditions of all such
policies and bonds. Except as set forth on Schedule 4.20,
such policies of insurance and bonds (or other policies and
bonds providing substantially similar insurance coverage)
are and have been in full force and effect for at least the
last year or since the inception of the Company or any of
its Subsidiaries, as the case may be, and remain in full
force and effect. Such policies of insurance and bonds are
of the type and in amounts customarily carried by Persons
conducting business similar to that presently conducted by
the Company and its Subsidiaries. The Company knows of no
threatened termination of any such policies or bonds.
4.21. Employment Practices. Except as set
forth in Schedule 4.21, neither the Company nor any of its
Subsidiaries is a party to or in the process of negotiating
any collective bargaining or labor agreement or union
contract. There is no (i) charge, complaint or suit pending
or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries respecting employment,
hiring for employment, terminating from employment,
employment practices, employment discrimination, terms and
conditions of employment, safety, wrongful termination, or
wages and hours, (ii) unfair labor practice charge or
complaint pending or, to the knowledge of the Company,
threatened against, or decision or order in effect and
binding on, the Company or any of its Subsidiaries before or
of the National Labor Relations Board, (iii) grievance or
arbitration proceeding arising out of or under collective
bargaining agreements pending or, to the knowledge of the
Company, threatened against the Company or any of its
Subsidiaries, (iv) strike, labor dispute, slow-down, work
stoppage or other interference with work pending or, to the
knowledge of the Company, threatened against the Company or
its Subsidiaries, or (v) to the knowledge of the Company,
union organizing activities or union representation question
threatened or existing with respect to any groups of
employees of the Company or any of its Subsidiaries, which
in the case of (i)-(v) above could have a Material Adverse
Effect on the Company and its Subsidiaries on a consolidated
basis or on the Subsidiaries, individually.
4.22. Financial Statements.
(a) The Company has delivered to the
Purchaser complete and correct copies of the consolidated
financial statements for the fiscal year ended December 31,
1994 and the nine months ended September 30, 1995, together
with the notes thereto (the "Financial Statements"). The
Financial Statements fairly present in all material respects
the financial position of the Company and its Subsidiaries
on a consolidated basis on the dates of such statements and
the results of their operations for the periods covered
thereby, and except with respect to unaudited financial
statements and the notes thereto and statements of cash
flows and subject to customary year-end adjustments, have
been prepared in accordance with GAAP, consistently applied.
(b) As of September 30, 1995 and as of the
Closing Date, and except as set forth in the Schedules
hereto, there are no material liabilities or claims relating
to the Company or its Subsidiaries of any nature, whether
accrued, absolute, contingent or otherwise, asserted or, to
the Company's knowledge, unasserted, except liabilities or
claims stated or adequately reserved against in the
Financial Statements or liabilities or claims incurred in
the ordinary course of the Company's and its Subsidiaries'
operations which are not required to be reflected in the
Financial Statements or in the notes thereto under GAAP.
Nothing has come to the attention of the Company since the
date of the Financial Statements which would indicate that
the Financial Statements were not true and correct in all
material respects as of the respective dates thereof.
4.23. Intellectual Property.
(a) Except as described on Schedule 4.23,
the Company and its Subsidiaries have exclusive ownership
of, or exclusive license to use, all patent, copyright,
trade secret, trademark, or other proprietary rights used or
to be used in the business of the Company or any of its
Subsidiaries and material to the Company and its
Subsidiaries on a consolidated basis or to the Subsidiaries,
individually (collectively, "Intellectual Property"). There
are no claims or demands of any other Person pertaining to
any of such Intellectual Property and no proceedings have
been instituted, or are pending or, to the knowledge of the
Company, threatened, which challenge the rights of the
Company or any of its Subsidiaries in respect thereof. The
Company and its Subsidiaries have the right to use, free and
clear of claims or rights of other Persons, all customer
lists, designs, manufacturing or other processes, computer
software, systems, data compilations, research results and
other information required for or incident to their products
or their business as presently conducted or contemplated.
(b) All patents, patent applications,
trademarks, trademark applications and registrations and
registered copyrights which are owned by or licensed to the
Company or any of its Subsidiaries or used or to be used by
the Company or any of its Subsidiaries in their business as
presently conducted, and which are material to the Company
and its Subsidiaries on a consolidated basis or to the
Subsidiaries, individually are listed on Schedule 4.23. All
of such patents, patent applications, trademark
registrations, trademark applications and registered
copyrights have been duly registered in, filed in or issued
by the United States Patent and Trademark Office, the United
States Register of Copyrights, or the corresponding offices
of other jurisdictions as identified on said Schedule, and
have been properly maintained and renewed in accordance with
all applicable provisions of law and administrative
regulations in the United States and each such jurisdiction.
(c) All material licenses or other
agreements under which the Company or any of its
Subsidiaries is granted rights in Intellectual Property are
listed on Schedule 4.23. Except as set forth on Schedule
4.23, all said licenses or other agreements are in full
force and effect and to the knowledge of the Company there
is no material default by any party thereto.
(d) All material licenses or other
agreements under which the Company or any of its
Subsidiaries has granted rights to others in Intellectual
Property owned or licensed by the Company or any of its
Subsidiaries are listed on Schedule 4.23. Except as set
forth on Schedule 4.23, all of said licenses or other
agreements are in full force and effect, and to the
knowledge of the Company there is no material default by any
party thereto.
(e) The Company and its Subsidiaries have
taken all steps required in accordance with sound business
practice and business judgment to establish and preserve
their ownership of all material copyright, trade secret and
other proprietary rights with respect to their products and
technology. The Company and its Subsidiaries regularly
require all professional and technical employees, and other
employees having access to valuable non-public information
of the Company or any of its Subsidiaries, to execute
agreements under which such employees are required to convey
to the Company or any of its Subsidiaries, as applicable,
ownership of all inventions and developments conceived or
created by them in the course of their employment and to
maintain the confidentiality of all such information of the
Company and its Subsidiaries. To the Company's knowledge,
neither the Company nor its Subsidiaries made any such
information available to any Person other than employees of
the Company or any of its Subsidiaries except pursuant to
written agreements requiring the recipients to maintain the
confidentiality of such information and appropriately
restricting the use thereof. To the knowledge of the
Company, there are no infringements by others of any of its
or any Subsidiary's Intellectual Property rights.
(f) To the knowledge of the Company, the
present business, activities and products of the Company or
any of its Subsidiaries do not infringe any intellectual
property of any other Person, except where such infringement
would not have a Material Adverse Effect on the Company and
its Subsidiaries on a consolidated basis or on the
Subsidiaries, individually. No proceeding charging the
Company or any of its Subsidiaries with infringement of any
adversely held Intellectual Property has been filed or is,
to the knowledge of the Company, threatened to be filed. To
the Company's knowledge, there exists no unexpired patent or
patent application which includes claims that would be
infringed by or otherwise have a Material Adverse Effect on
the Company and its Subsidiaries on a consolidated basis or
on the Subsidiaries, individually. Neither the Company nor
any of its Subsidiaries is making unauthorized use of any
confidential information or trade secrets of any Person,
including without limitation, to the knowledge of the
Company, any former employer of any past or present employee
of the Company or any of its Subsidiaries except where such
use would not have a Material Adverse Effect on the Company
and its Subsidiaries on a consolidated basis or on the
Subsidiaries, individually. Except as set forth on Schedule
4.23, neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any of its or any
Subsidiary's employees have any agreements or arrangements
with any Persons other than the Company or any of its
Subsidiaries related to confidential information or trade
secrets of such Persons or restricting any such employee's
engagement in business activities of any nature. The
activities of the Company or any of its Subsidiaries or any
of its or any Subsidiary's employees acting on behalf of the
Company or any of its Subsidiaries do not violate any such
agreements or arrangements known to the Company which any
such employees have with other Persons.
4.24. Taxes. The Company and its
Subsidiaries, and any predecessors to the Company and any of
its Subsidiaries, have filed or obtained extensions of all
federal, state, local and foreign income, excise, franchise,
real estate, sales and use and other tax returns heretofore
required by law to be filed by each of them. All material
taxes, including, without limitation, all federal, state,
county, local, foreign or other income, Property, sales,
use, franchise, value added, employees' income withholding,
social security, unemployment and other taxes, of any nature
whatsoever which have become due or payable by the Company
or any of its Subsidiaries, or by any predecessors thereto,
including any fines or penalties with respect thereto or
interest thereon, whether disputed or not (collectively,
"Taxes"), have been paid in full or are adequately provided
for in accordance with GAAP on the financial statements of
the applicable Person. All material deposits, Taxes and
other assessments and levies required by law to be made,
withheld, collected or provided for by the Company or any of
its Subsidiaries, or any predecessors thereto, including
deposits with respect to Taxes constituting employees'
income withholding taxes, have been duly made, withheld,
collected or provided for and have been paid over to the
proper federal, state or local authority, or are held by the
applicable Person for such payment. No Liens arising from
or in connection with Taxes have been filed and are
currently in effect against the Company or any of its
Subsidiaries, except for Liens for Taxes which are not yet
due. Except as set forth on Schedule 4.24 hereto, neither
the Company nor any of its Subsidiaries, nor any predecessor
thereto, has executed or filed with the IRS or any other
taxing authority any agreement or document extending, or
having the effect of extending, the period for assessment or
collection of any Taxes. The federal income tax returns of
the Company and each of its Subsidiaries, and any
predecessor thereto, have been examined by the IRS, or the
statute of limitations with respect to federal income taxes
has expired, for all tax years to and including the fiscal
year ended December 31, 1990 and, except as set forth on
Schedule 4.24, any deficiencies have been paid in full or
are being contested in good faith by appropriate action, or
appropriate reserves therefor have been established on the
Company's or applicable Subsidiaries' books or financial
statements. Except as set forth on Schedule 4.24, neither
the Company nor any of its Subsidiaries is a party to any
tax sharing agreement or arrangement. Except as set forth
on Schedule 4.24, no audits or investigations are pending
or, to the knowledge of the Company, threatened with respect
to any tax returns or taxes of the Company or any of its
Subsidiaries, or any predecessor thereto.
4.25. Transactions with Affiliates. Except as
set forth on Schedule 4.25, there are no material
transactions, agreements or understandings, existing or
presently contemplated, between or among the Company or any
of its Subsidiaries and any of its officers or directors or
stockholders or any of their Affiliates or associates.
4.26. Dividend Payments. Except as set forth
on Schedule 4.26, the Company is not subject to any
consensual restriction on its ability to pay dividends.
5. Purchase for Investment; Source of Funds.
(a) The Purchaser represents that (i) it is an
accredited investor as defined in Regulation D under the
Securities Act, or (ii) by reason of its business and
financial experience, and the business and financial
experience of those persons, if any, retained by it to
advise it with respect to its investment in the Shares, such
Purchaser together with such advisers have such knowledge,
sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risk
of the prospective investment, and that it is purchasing the
Shares for its own account or for one or more separate
accounts maintained by it or for the account of one or more
institutional investors on whose behalf the Purchaser has
authority to make this representation for investment and not
with a view to the distribution thereof except in compliance
with the Securities Act or an exemption available
thereunder. The Purchaser understands and agrees that the
Shares have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions
thereunder or if an exemption from registration is
available.
(b) Each Purchaser which is an insurance company
represents, to the knowledge of such Purchaser, that no part
of the funds to be used by it to purchase the Shares to be
purchased by such Purchaser constitutes assets allocated to
any separate account maintained by such Purchaser that
contains the assets of any Employee Program on Schedule 4.10
(or its related trust). Each Purchaser which is not an
insurance company or an "investment company" (as defined in
the Investment Company Act of 1940, as amended) also
represents, to the knowledge of such Purchaser, that
Purchaser is not using "Plan Assets", as defined in the
Employee Retirement Income Security Act of 1974, as amended,
and the rules and regulations promulgated thereunder, to
purchase the Shares. The representations made in the
preceding sentences are made solely in reliance upon, and
subject to, the accuracy of the Company's representations
contained in Section 4.10 of this Agreement and the list of
Employee Programs shown on Schedule 4.10. As used in this
section, the term "separate account" shall have the meaning
assigned to it in Section 3(17) of ERISA.
(c) The Purchaser represents that it has full
power and authority and has taken all action necessary to
authorize it to enter into and perform its obligations under
this Agreement and all other documents or instruments
contemplated hereby. This Agreement is the legal, valid and
binding obligation of each Purchaser, and is enforceable in
accordance with its terms.
(d) Other than Sutro & Co., and Lido Consulting,
Inc. whose fees shall be paid by the Company, to the best of
Purchaser's knowledge, no broker, investment banker,
financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee
or commission in connection with the sale of the Company's
Common Stock to Purchaser based upon arrangements made by or
on behalf of the Purchaser. Purchaser makes no
representations or warranties as to arrangements with
brokers, investment bankers, financial advisors or other
persons entered into by the Company.
6. Covenants.
6.1 Issuance of Additional Shares in Exempt
Transactions. The Company agrees that it shall not, on or
prior to June 30, 1996, without the prior written consent of
the purchasers of a majority of the shares of Common Stock
purchased pursuant to the Transaction Documents, issue any
additional shares of Capital Stock of the Company other than
in Exempt Transactions. "Exempt Transactions" means:
(i) a bona fide public offering, defined as an
underwritten public offering of at least $5,000,000 in gross
proceeds that also constitutes a "distribution" as defined
in Rule 10b-6 of the Securities Exchange Act of 1934;
(ii) issuances of securities (a) upon exercise of
options or warrants described in Schedule 4.6 hereto, or (b)
through the exercise of options or warrants granted or to be
granted under employee stock option plans, which plans are
approved by a majority of the Company's Board of Directors;
(iii) the issuance of securities in connection with
a joint venture, partnership, strategic alliance or other
business relationship between the Company and another
Person, the primary purpose of which is to (a) allow the
Company to acquire an interest in technology, patents,
licenses, software, or other intellectual property or
similar rights from such Person, or (b) allow the Company to
develop, manufacture, market, distribute or otherwise
exploit a product, prototype, technology, patent, license,
software, or other intellectual property or other right,
owned by the Company or other Persons where such Person is
contributing technology, management expertise or other
skills and not merely financing;
(iv) the issuance of securities for which a
registration statement is filed on a Form S-8 (or any
substitute form that is adopted by the Commission);
(v) the issuance of securities pursuant to a merger or
acquisition transaction whereby the Company merges with or
acquires a similar or complementary business or technology,
patents, licenses, software, or other intellectual property
or similar rights, separately or in combination with other
assets, which are similar or complementary to those of the
Company; or
(vi) issuances of Securities pro rata to all holders of
any class of Capital Stock in any stock dividend.
6.2 Other Issuances of Additional Shares. The
Company agrees that if the Company at any time or from time
to time, on or prior to June 30, 1997, issues or makes any
offering of its Capital Stock in any transaction not
involving an Exempt Transaction, as defined in Section 6.1,
the Purchaser and all the Other Purchasers shall also be
offered the opportunity to acquire from the Company, on the
same terms as the issuance or offering in such transaction,
up to the same number of shares of Capital Stock so offered
or issued, allocated pro rata among the Purchaser and such
Other Purchasers or in such other manner as they may agree.
The Company shall give written notice to the Purchaser
(the "Offer Notice"), which notice shall describe the terms
and conditions of the proposed issuance or offering,
including the name and address of all Persons to whom such
issuance or offering is proposed to be made, the
consideration to be paid (the "Offer Consideration") and any
other material terms and conditions thereof, and shall
contain an offer (collectively, the "Offer") to sell to the
Purchaser and all Other Purchasers such number of shares as
determined according to this Section 6.2 ("the Offered
Shares") upon the same terms and conditions as the proposed
issuance or offer, except that if such issuance or offer is
to be made otherwise than for cash, cash equivalents or
marketable securities against delivery, the fair market
value of the non-cash portion of the Offer Consideration
shall be established in such manner as is mutually agreed by
the Company and the Purchaser, and failing such agreement,
by a national "Big 6" accounting firm or investment bank
mutually selected by the Company and the Purchaser, and the
Offer shall be deemed to offer to sell the Offered Shares to
Purchaser for an aggregate amount of cash equal to (A) the
fair market value of the non-cash portion of the Offer
Consideration as so established, (B) the fair market value
of the portion of the Offer Consideration constituting
marketable securities, and (C) the portion of the Offer
Consideration constituting cash and cash equivalents. The
Offer shall be signed by the Company and shall be
accompanied by any agreement(s) between the Company and any
Person to whom such shares are offered or issued, and shall
remain open to be accepted by the Purchaser for a period of
seven (7) business days after the date which is the later to
occur of (A) the actual receipt of the Offer by the
Purchaser or (B) the date which is five (5) days after
written notice is given to the parties of the fair market
value of the non-cash portion of the Offer Consideration
(the "Offer Period"), during which period the Purchaser may
accept the Offer with respect to some or all of the Offered
Shares by written notice thereof to the Company. In the
event that the Purchaser accepts the Offer with respect to
some or all of the Offered Shares, the Purchaser shall have
forty (40) days (the "Purchase Period") after the end of the
Offer Period (or more if the Company is not using its good
faith efforts to consummate the transaction) to consummate
the transaction with the Company.
The Purchaser, in its sole discretion, may, in
addition to or in lieu of its exercising its rights pursuant
to this Section 6.2 as set forth above, designate one or
more other Persons Affiliated with the Purchaser as
designees to acquire all or any portion of the Offered
Shares in accordance with the provisions of this Section 6.2
as set forth above.
6.3 Press Releases. The Company shall not issue
any press release naming the Purchaser therein, without the
prior written consent of the Purchaser, which consent may be
withheld in the Purchaser's sole discretion.
7. Restrictions on Transfer.
7.1. Restrictive Legends. Except as otherwise
permitted by this Section 7, each certificate representing
the Shares shall be stamped or otherwise imprinted with a
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE.
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT
TO (i) A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144
OR RULE 144A UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION
FROM REGISTRATION UNDER SUCH ACT RELATING TO SUCH ACT,
PROVIDED THAT, IF REQUESTED BY THE COMPANY, AN OPINION OF
COUNSEL REASONABLY SATISFACTORY IN FORM AND SUBSTANCE WILL
BE FURNISHED TO THE COMPANY THAT AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
The Company shall maintain a copy of this Agreement and
any amendments thereto on file in its principal office, and
will make such copy available during normal business hours
for inspection to any party thereto or will provide such
copy to the Purchaser upon its request.
Whenever the legend requirement imposed by this section
7.1 shall terminate, as provided herein below, the
respective holders of Shares for which such legend
requirements have terminated shall be entitled to receive
from the Company, at the Company's expense, certificates
without such legend.
7.2. Notice of the Proposed Transfer; Opinions of
Counsel. The holder of each certificate representing the
Shares bearing the restrictive legend set forth in Section
7.1 above ("Restricted Security"), agrees that in connection
with any transfer of such Restricted Security, the
transferring holder will provide the Company upon reasonable
request by the Company to such transferring holder with (a)
written notice describing the manner or circumstances of
such transfer or proposed transfer and/or (b) upon
reasonable request by the Company to such transferring
holder, an opinion of counsel, which is knowledgeable in
securities law matters (including in-house counsel), in form
and substance reasonably satisfactory to the Company, to the
effect that the proposed transfer of such Restricted
Security may be effected without registration of such
Restricted Security under the Securities Act. If for any
reason the Company (after having been furnished with the
opinion required to be furnished pursuant to this Section
7.2) shall fail to notify such holder within 5 business days
after such holder shall have delivered such opinion to the
Company that, in its or its counsel's opinion, the transfer
may not be legally effective (the "Illegal Transfer
Notice"), such holders shall thereupon be entitled to
transfer the Restricted Security as proposed. If the holder
of the Restricted Security delivers to the Company an
opinion of counsel (including in-house counsel or regular
counsel to such Purchaser or its investment adviser) in form
and substance reasonably satisfactory to the Company that
subsequent transfers of such Restricted Security will not
require registration under the Securities Act, or if the
Company does not provide the holder with an Illegal Transfer
Notice as set forth above, the Company will promptly after
such contemplated transfer deliver new certificates for such
Restricted Security which do not bear the Securities Act
legend set forth in Section 7.1 above. The restrictions
imposed by this Section 7 upon the transferability of any
particular Restricted Security shall cease and terminate
when such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act or
transferred pursuant to Rule 144 promulgated under the
Securities Act. The holder of any Restricted Security as to
which such restrictions shall have terminated shall be
entitled to receive from the Company a new security of the
same type but not bearing the restrictive Securities Act
legend set forth in Section 7.1 and not containing any other
reference to the restrictions imposed by this Section 7.
Notwithstanding any of the foregoing, no opinion of counsel
will be required to be rendered pursuant to this Section 7.2
with respect to the transfer of any Securities on which the
restrictive legend has been removed in accordance with this
Section 7.2. As used in this Section 7.2, the term
"transfer" encompasses any sale, transfer or other
disposition of any Securities referred to herein.
8. Definitions. As used herein the following terms
have the following respective meanings:
"Affiliate," except as otherwise defined in this
Agreement, means any Person directly or indirectly
controlling or controlled by or under common control with
the Company or any Subsidiary, provided that, for purposes
of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agreement" means this Agreement, as amended,
modified or supplemented from time to time, together with
any exhibits, schedules or other attachments thereto.
"Business Day" means any day other than a day on
which banks are authorized or required to be closed in the
State of New York.
"Capital Stock" means, with respect to any Person,
any and all shares, interests, participations, rights in or
other equivalents (however designated) of such Person's
capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock.
"Charter Documents" has the meaning ascribed
thereto in Section 4.1 hereof.
"Closing" has the meaning ascribed thereto in
Section 2 hereof.
"Closing Date" has the meaning ascribed thereto in
Section 2 hereof.
"Code" means the Internal Revenue Code of 1986,
and the rules and regulations thereunder, as amended from
time to time.
"Commission" means the United States Securities
and Exchange Commission or any other federal agency at the
time administering the Securities Act.
"Common Stock" has the meaning ascribed thereto in
Section 1 hereof.
"Company" has the meaning ascribed thereto in the
introduction hereof, and shall include the Company's
successors by merger, acquisition, reorganization or
otherwise.
"Consolidation" has the meaning ascribed thereto
in Section 3.1(j) hereof.
"Current Affiliate" has the meaning ascribed
thereto in Section 4.10 hereof.
"Employee Program" has the meaning ascribed
thereto in Section 4.10 hereof.
"Environment" means soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface
strata and ambient air.
"Environmental Law(s)" means and includes any
environmental or health and safety-related law, regulation,
rule, ordinance, or legally enforceable requirement at the
foreign, federal, state, or local level.
"ERISA" means the Employee Retirement Income
Security Act of 1974, and the rules and regulations
thereunder, as amended from time to time.
"Financial Statements" has the meaning ascribed
thereto in Section 4.22 hereof.
"GAAP" means generally accepted accounting
principles and practices set forth in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the
accounting profession that are applicable to the
circumstances as of the date of determination, applied on a
consistent basis.
"Governmental Authority" means any governmental or
quasi-governmental authority including, without limitation,
any federal, state, territorial, county, municipal or other
governmental or quasi-governmental agency, board, branch,
bureau, commission, court, department or other
instrumentality or political unit or subdivision, whether
domestic or foreign.
"Hazardous Materials" means and includes any
hazardous waste, hazardous material, hazardous substance,
petroleum product, oil, toxic substance, pollutant,
contaminant, or other substance that poses a threat to human
health or safety, as defined or regulated under any
Environmental Law.
"Hazardous Waste" means and includes any hazardous
waste as defined or regulated under any Environmental Law.
"Illegal Transfer Notice" has the meaning ascribed
thereto in Section 7.2 hereof.
"Indemnified Party" or "Indemnified Parties" has
the meaning ascribed thereto in Section 9.1(a) hereof.
"Intellectual Property" has the meaning ascribed
thereto in Section 4.23(a) hereof.
"IRS" means the Internal Revenue Service or any
successor agency.
"License" or "Licenses" has the meaning ascribed
thereto in Section 4.3 hereof.
"Lien" means any mortgage, lien (statutory or
otherwise), charge, pledge, hypothecation, conditional sales
agreement, adverse claim, title retention agreement or other
security interest, encumbrance or other title defect in or
on any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any
conditional sale, trust receipt or other title retention
agreement with respect to any Property or asset of such
Person.
"Losses" has the meaning ascribed thereto in
Section 9.1(a) hereof.
"Material Adverse Effect" has the meaning ascribed
thereto in Section 4.1 hereof.
"Multiemployer Plan" has the meaning ascribed
thereto in Section 4.10 hereof.
"Officers' Certificate" means a certificate
executed on behalf of the Company by (a) the Chairman of the
Board of Directors (if an officer) or the President or one
of the Vice Presidents of the Company and (b) the Treasurer
or one of the Assistant Treasurers or the Secretary or one
of the Assistant Secretaries of the Company.
"Other Purchasers" has the meaning ascribed
thereto in Section 1 hereof.
"Other Stock Purchase Agreements" has the meaning
ascribed thereto in Section 1 hereof.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, limited liability company, unincorporated
organization or government or other agency or political
subdivision thereof.
"Property" means any interest in any kind of
property or asset, whether real, personal or mixed, or
tangible or intangible.
"Purchaser" except as defined elsewhere in this
Agreement, has the meaning ascribed thereto in the
introduction hereof.
"Purchasers" except as defined elsewhere in this
Agreement, shall mean the Purchaser and the Other
Purchasers.
"Purchasers' Counsel" means with respect to
Fidelity Copernicus Fund, L.P. and Fidelity Galileo Fund,
L.P., Goodwin, Procter & Hoar, a partnership including
professional corporations, acting as special counsel to
certain of the Purchasers in connection with the
transactions contemplated hereunder; and with respect to HBI
Financial Inc., means Latham & Watkins, a partnership.
"Registration Rights Agreement" has the meaning
ascribed thereto in Section 3.1(i), as amended or
supplemented from time to time in accordance with the terms
thereof.
"Release" means any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing, or dumping into
the Environment.
"Restricted Security" has the meaning ascribed
thereto in Section 7.2 hereof.
"Rule 144" means Rule 144 as promulgated by the
Commission under the Securities Act, and any successor rule
or regulation thereto.
"Rule 144A" means Rule 144A as promulgated by the
Commission under the Securities Act, and any successor rule
or regulation thereto.
"Securities Act" means the Securities Act of 1933,
as amended from time to time, or any successor statute, and
the rules and regulations of the Commission promulgated
thereunder.
"Shares" has the meaning ascribed thereto in
Section 1 hereof.
"Subsidiary" means with respect to any Person, any
corporation, association or other business entity of which
securities representing more than 50% of the combined voting
power of the total Voting Stock (or in the case of an
association or other business entity which is not a
corporation, more than 50% of the equity interest) is at the
time owned or controlled, directly or indirectly, by that
Person or one or more Subsidiaries of that Person or a
combination thereof. When used herein without reference to
any Person, Subsidiary means a Subsidiary of the Company.
"Taxes" has the meaning ascribed thereto in
Section 4.24 thereof.
"Threat of Release" means a substantial likelihood
of a Release which requires action to prevent or mitigate
damage to the Environment which may result from such
Release.
"Transaction Documents" means, collectively, this
Agreement, the Other Stock Purchase Agreements, the
Registration Rights Agreement and any and all agreements,
certificates, instruments and other documents contemplated
thereby or executed and delivered in connection therewith.
"Voting Stock" means any class or classes of
Capital Stock pursuant to which the holders thereof have the
general voting power under ordinary circumstances to vote
for the election of directors, managers or trustees of any
Persons (irrespective of whether or not at the time, stock
of any class or classes will have, or might have, voting
power by reason of the happening of any contingency).
9. Miscellaneous.
9.1. Indemnification; Expenses, Etc.
(a) In addition to any and all obligations
of the Company to indemnify the Purchaser hereunder or under
the other Transaction Documents, the Company agrees, without
limitation as to time, to indemnify and hold harmless the
Purchaser, its Affiliates, and the employees, officers,
directors, partners and agents of the Purchaser and its
Affiliates (individually, an "Indemnified Party" and,
collectively the "Indemnified Parties") from and against any
and all losses, claims, damages, liabilities, costs
(including the costs of preparation and attorneys' fees) and
expenses (including expenses of investigation)
(collectively, "Losses") incurred or suffered by an
Indemnified Party (i) in connection with or arising out of
any breach of any warranty, or the inaccuracy of any
representation, as the case may be, made by the Company, or
the failure of the Company to fulfill any agreement or
covenant contained in this Agreement or (ii) in connection
with any proceeding against the Company or any Indemnified
Party brought by any third party arising out of or in
connection with this Agreement or the other Transaction
Documents or the transactions contemplated hereby or thereby
or any action taken in connection herewith or therewith (or
any other document or instrument executed herewith or
pursuant hereto or thereto), whether or not the transactions
contemplated by this Agreement are consummated and whether
or not any Indemnified Party is a formal party to any
Proceeding; provided, however, that the Company shall not be
liable for any Losses resulting from any action on the part
of any Indemnified Party which is finally determined in such
proceeding to be wrongful or which is an act of gross
negligence, recklessness, or willful misconduct by such
Indemnified Party. The Company agrees promptly to reimburse
any Indemnified Party for all such Losses as they are
incurred or suffered by such Indemnified Party.
Except as otherwise provided herein, the Company
agrees (for the benefit of each Purchaser) to pay, and to
hold each Purchaser harmless from and against, all costs and
expenses (including, without limitation, attorneys' fees,
expenses and disbursements), if any, in connection with the
enforcement against the Company, as the case may be, of this
Agreement or any other Transaction Document or any other
agreement or instrument furnished pursuant hereto or thereto
or in connection herewith or therewith in any action in
which the Purchaser attempting to enforce any of the
foregoing shall prevail or in any action in which the
Purchaser shall in good faith assert any provision of any of
the foregoing as a defense.
(b) If any Indemnified Party is entitled to
indemnification hereunder, such Indemnified Party shall give
prompt notice to the Company of any claim or of the
commencement of any proceeding against the Company or any
Indemnified Party brought by any third party with respect to
which such Indemnified Party seeks indemnification pursuant
hereto; provided, however, that the failure so to notify the
Company shall not relieve the Company from any obligation or
liability except to the extent the Company is prejudiced by
such failure. The Company shall have the right, exercisable
by giving written notice to an Indemnified Party promptly
after the receipt of written notice from such Indemnified
Party of such claim or proceeding, to assume, at the expense
of the Company, the defense of any such claim or proceeding
with counsel reasonably satisfactory to such Indemnified
Party. The Indemnified Party or Parties will not be subject
to any liability for any settlement made without its or
their consent (but such consent will not be unreasonably
withheld). The Company shall not consent to entry of any
judgment or enter into any settlement that does not include
as an unconditional term thereof the giving by claimant or
plaintiff to such Indemnified Party or Parties of a release,
in form and substance satisfactory to the Indemnified Party
or Parties, from all liability in respect of such claim,
litigation or proceeding.
(c) In addition to any other obligations of
the Company to indemnify the Purchasers herein or pursuant
to any of the Transaction Documents or any other agreements
or documents executed and delivered in connection therewith,
the Company will pay, and will save the Purchaser and each
other holder of any of the Securities harmless from
liability for the payment of all expenses arising in
connection with such transactions, including, without
limitation: (a) all document production and duplication
charges and the reasonable fees, charges and expenses of
Purchasers' Counsel (whether arising before or after the
Closing Date) incurred by Purchaser in connection with the
transactions contemplated hereby and any subsequent proposed
modification of, or proposed consent under, this Agreement,
whether or not such proposed modification shall be effected
or proposed consent granted; (b) the costs and expenses,
including attorneys' fees, incurred by Purchaser in
enforcing any rights under this Agreement or in responding
to any subpoena or other legal process issued in connection
with this Agreement or the transactions contemplated hereby
or thereby or by reason of Purchaser having acquired any of
the Shares, including without limitation costs and expenses
incurred by Purchaser in any bankruptcy proceeding of the
Company; (c) the cost of delivering to Purchaser's principal
office, insured to its satisfaction, the Shares delivered to
Purchaser hereunder; and (d) the reasonable out-of-pocket
expenses incurred by Purchaser in connection with such
transactions and any such amendments or waivers.
9.2. Survival of Representations and Warranties;
Severability. All representations and warranties contained
in this Agreement or the Transaction Documents or made in
writing by or on behalf of the Company in connection with
the transactions contemplated by this Agreement or the other
Transaction Documents shall survive, for the duration of any
statutes of limitation applicable thereto, (i) the execution
and delivery of this Agreement, (ii) any investigation at
any time made by any Purchaser or on such Purchaser's
behalf, (iii) the purchase of the Shares by the Purchasers
under this Agreement and the Other Stock Purchase Agreements
and (iv) any disposition of or payment on the Shares. All
statements contained in any certificate or other instrument
delivered to the Purchaser by or on behalf of the Company
pursuant to this Agreement or the other Transaction
Documents shall be deemed representations and warranties of
the Company under this Agreement. Any provision of this
Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provisions
in any other jurisdiction.
9.3. Amendment and Waiver. This Agreement may be
amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may be given,
provided that the same are in writing and signed by the
Purchaser and the Company.
9.4. Notices. Except as otherwise provided in
this Agreement, notices and other communications under this
Agreement shall be in writing and shall be delivered, or
mailed by registered or certified mail, return receipt
requested, or by a nationally recognized overnight courier,
postage prepaid, addressed, (a) if to the Purchaser, at such
address as the Purchaser shall have furnished to the Company
in writing, or (b) if to a transferee of the Purchaser of
any Shares, at such address as the transferee shall have
furnished to the Company in writing, or, until any such
transferee so furnishes to the Company an address, then to
and at the address of the last holder of such Shares who has
furnished an address to the Company, or (c) if to the
Company, at its address set forth at the beginning of this
Agreement, to the attention of President, or at such other
address, or to the attention of such other officer, as the
Company shall have furnished to the Purchaser or the
transferee of the Purchaser Shares in writing.
9.5. Entire Agreement. This Agreement and the
other Transaction Documents and all documents delivered in
connection herewith or therewith embody the entire agreement
and understanding between the Purchaser and the Company and
supersede all prior agreements and understandings relating
to the subject matter hereof.
9.6. Successors and Assigns. Subject to the
limitations set forth in the next sentence, whenever in this
Agreement any of the parties hereto are referred to, such
reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and
agreements by or on behalf of the respective parties which
are contained in this Agreement shall bind and inure to the
benefit of the successors and assigns of all other parties.
The terms and provisions of this Agreement and the other
Transaction Documents shall inure to the benefit of and
shall be binding upon any assignee or transferee of the
Purchaser who takes the Shares as Registrable Securities (as
defined in the Registration Rights Agreement of even date
herewith), and in the event of such transfer or assignment,
the rights and privileges herein conferred upon the
Purchaser shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and
conditions hereof.
9.7. Descriptive Headings. The headings in this
Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
9.8. Satisfaction Requirement. If any agreement,
certificate or other writing, or any action taken or to be
taken, is by the terms of this Agreement required to be
satisfactory to the Purchaser or to the holders of a
specified portion of the Shares, the determination of such
satisfaction shall be made by the Purchaser or such holders,
as the case may be, in the sole and exclusive judgment
(exercised in good faith) of the Person or Persons making
such determination.
9.9. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAW.
9.10. Service of Process. The Company (a)
hereby irrevocably submits itself to the jurisdiction of the
courts of the Commonwealth of Massachusetts and to the
jurisdiction of the United States District Court for the
District of Massachusetts for the purpose of any suit,
action or other proceeding arising out of or based upon this
Agreement, the Shares, the other Transaction Documents or
the subject matter hereof or thereof brought by the
Purchaser (or the Other Purchasers) or their successors or
assigns and (b) hereby waives, and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or
execution, that the suit, action or proceeding is brought in
an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court, and
(c) hereby waives any offsets or counterclaims in any such
action, suit or proceeding (other than compulsory
counterclaims). The Company hereby consents to service of
process by registered mail at the address to which notices
are to be given under Section 9.4 hereof. The Company
agrees that its submission to jurisdiction and its consent
to service of process by mail is made for the express
benefit of the Purchaser. Final judgment against the
Company in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions (a) by
suit, action or proceeding on the judgment, a certified or
true copy of which shall be conclusive evidence of the fact
and of the amount of any indebtedness or liability of the
Company therein described or (b) in any other manner
provided by or pursuant to the laws of such other
jurisdiction; provided, however, that the Purchaser may at
its option bring suit or institute other judicial
proceedings against the Company or any of its Subsidiaries
or assets in any state or federal court of the United States
or in any country or place where the Company or its assets
may be found.
9.11. Counterparts. This Agreement may be
executed by the parties hereto in any number of separate
counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall
constitute one and the same agreement. It shall not be
necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
9.12. No Adverse Interpretation of Other
Agreements. This Agreement may not be used to interpret
another agreement, indenture, loan or debt agreement of the
Company or any Subsidiary. Any such agreement, indenture,
loan or debt agreement may not be used to interpret this
Agreement.
9.13. WAIVER OF JURY TRIAL. EACH PURCHASER
AND THE COMPANY HEREBY WAIVE TRIAL BY JURY IN ANY
LITIGATION, SUIT OR PROCEEDING, IN ANY COURT WITH RESPECT
TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT,
THE SHARES, ANY OTHER TRANSACTION DOCUMENTS, OR ANY
INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT, OR WITH RESPECT TO THE
VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT THEREOF, PROVIDED, HOWEVER, THAT WITH RESPECT TO
ANY COMPULSORY COUNTERCLAIM (I.E., A CLAIM WHICH IF NOT
BROUGHT IN SUCH ACTION WOULD RESULT IN THE PURCHASER OR
COMPANY BEING FOREVER BARRED FROM BRINGING SUCH CLAIM) THE
PURCHASER AND THE COMPANY SHALL HAVE THE RIGHT TO RAISE SUCH
COMPULSORY COUNTERCLAIM IN ANY SUCH LITIGATION.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
STOCK PURCHASE AGREEMENT
COMPANY SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
AMERIGON INCORPORATED, a California corporation
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: President
STOCK PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE
Accepted and agreed as of the
date first written above:
FIDELITY GALILEO FUND, L.P.
By: Fidelity Galileo Corp., its General Partner Number of
Shares: 280,000
By: /s/ Daniel G. Harmetz
Purchase Price: $8.00 per share
Name: Daniel G. Harmetz
Title: Chief Investment Officer
Address: Fidelity Galileo Fund, L.P.
Fidelity Investments
82 Devonshire Street - F7E
Boston, MA 02109
Attn: Portfolio Manager
Telephone: 617-563-7882
Telecopy: 617-476-3316
Nominee (name in which the
Shares are to be registered, Copies of notices to:
if different than name of Wendy Schnipper Clayton, Esq.
Purchaser): Goldman Sachs & Co. Senior Legal Counsel
(Nominee's Name) Fidelity Investments
82 Devonshire Street - F7D
Tax I.D. Number: 13-5108880 Boston, Massachusetts 02109
(if acquired in the name of a Telephone No.: 617-563-0505
nominee, the taxpayer I.D. Telecopier No.: 617-476-7774
number of such nominee)
Limitation of Liability: Fidelity Galileo Fund, L.P.
("Purchaser") is a Delaware limited partnership. Each of
the parties hereto acknowledges and agrees that this
Agreement is not executed on behalf of any of the partners,
trustees, officers, directors, employees or beneficiaries of
the Purchaser as individuals and the obligations of this
Agreement are not binding upon any of the partners,
trustees, officers, directors, employees or beneficiaries of
the Purchaser individually but are binding only upon the
assets and property of the Purchaser. The Company agrees
that no beneficiary, partner, trustee, officer, director or
employee of the Purchaser may be held personally liable or
responsible for any obligations of the Purchaser arising out
of this Agreement. With respect to obligations of the
Purchaser arising out of this Agreement, the Company shall
look for payment or satisfaction of any claim solely to the
assets and property of the Purchaser.
STOCK PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE
Accepted and agreed as of the
date first written above:
FIDELITY COPERNICUS FUND, L.P.
By: Fidelity Copernicus Corp., its General Partner
Number of Shares: 220,000
By: /s/ Daniel G. Harmetz
Purchase Price: $ 8.00 per share
Name: Daniel G. Harmetz
Title: Chief Investment Officerr
Address: Fidelity Copernicus Fund, L.P.
Fidelity Investments
82 Devonshire Street - F7E
Boston, MA 02109
Attn: Portfolio Manager
Telephone: 617-563-7882
Telecopy: 617-476-3316
Nominee (name in which the Copies of notices to:
Shares are to be registered, Wendy Schnipper Clayton, Esq.
if different than name of Senior Legal Counsel
Purchaser): Dol & Co. Fidelity Investments
(Nominee's Name) 82 Devonshire Street - F7D
Boston, Massachusetts 02109
Tax I.D. Number: 04-2562749 Telephone No.: 617-563-0505
(if acquired in the name of a Telecopier No.: 617-476-7774
nominee, the taxpayer I.D.
number of such nominee)
Limitation of Liability: Fidelity Copernicus Fund, L.P.
("Purchaser") is a Delaware limited partnership. Each of
the parties hereto acknowledges and agrees that this
Agreement is not executed on behalf of any of the partners,
trustees, officers, directors, employees or beneficiaries of
the Purchaser as individuals and the obligations of this
Agreement are not binding upon any of the partners,
trustees, officers, directors, employees or beneficiaries of
the Purchaser individually but are binding only upon the
assets and property of the Purchaser. The Company agrees
that no beneficiary, partner, trustee, officer, director or
employee of the Purchaser may be held personally liable or
responsible for any obligations of the Purchaser arising out
of this Agreement. With respect to obligations of the
Purchaser arising out of this Agreement, the Company shall
look for payment or satisfaction of any claim solely to the
assets and property of the Purchaser.