Exhibit 6.25
INVESTMENT AGREEMENT
THIS AGREEMENT is being entered into as of the 17th day of August, 2000
by and between Nurescell, Inc., a Nevada corporation, with its principal place
of business in Newport Beach, California ("USA") and AG, an entity formed under
the laws of the Federal Republic of Germany ("AG").
WHEREAS, AG has concurrently entered into an exclusive Licensing
Agreement for technology developed by USA (hereinafter, "Technology") for the
purpose of commercialization and marketing of said Technology in Europe, the
British Isles and countries of the former Soviet Union; and
WHEREAS, as additional consideration for entering into the License
Agreement, AG, with the assistance of Advanced Technology Industries, Inc., a
Delaware corporation (ATI), shall exercise its best efforts in good faith to
raise as investment capital the sum of Twenty Million Deutsche Marks
(DM20,000,000), a portion of which shall be subject to the terms and conditions
of this Agreement; and
WHEREAS, USA shall initially own fifty-one percent (51%) of AG and ATI
shall own forty-nine percent (49%) of AG.
For the mutual promises and covenants contained herein and for valuable
consideration, the parties herewith agree as follows:
1. AG, with the assistance of ATI, shall exercise its best efforts in good
faith to cause to be raised the sum of Twenty Million Deutsche Marks
(DM20,000,000) as investment capital for the operations of AG, a
portion of which shall be subject to a "put option" by USA.
2. AG shall have the option to purchase from USA up to Four Million
Dollars ($4,000,000.00) worth of USA stock ("Call"). The Call(s) shall
be in the form attached hereto as Exhibit A. The right to exercise said
Call shall be effective upon signing of this Investment Agreement and
shall continue for a period of five (5) years thereafter. It is
acknowledged by the parties that said transfer of stock pursuant to the
Call may be subject to various restrictions on resale pursuant to the
rules and regulations of the Securities and Exchange Commission of the
United States of America and other applicable securities laws. AG
acknowledges and warrants that the Call shares will be purchased for
its own account and not for the beneficial interest of any other person
or for resale in connection with any other distribution of those
shares; provided, however, that AG shall be entitled to the benefit of
that certain Registration Right Agreement, attached hereto as Exhibit
"B."
3. All shares of USA delivered pursuant to the Call Option shall be deemed
restricted shares, subject to the attached Registration Rights
Agreement attached as Exhibit "B," and may not be sold, transferred,
assigned or hypothecated without compliance with all rules and
regulations of the U.S. Securities Act of 1933. All such shares shall
contain a restrictive legend as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "ACT") OR QUALIFIED UNDER
THE LAWS OF ANY OTHER JURISDICTION. THEY MAY NOT BE OFFERED OR
SOLD IN THE UNITED STATES OR TO U.S. PERSONS IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ALL
OTHER REQUIRED QUALIFICATIONS OR AN OPINION OF COUNSEL
SATISFACTORY TO NURESCELL TO THE EFFECT THAT SUCH REGISTRATION
AND QUALIFICATIONS ARE NOT REQUIRED. HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE ACT.
4. The Board of Directors of AG shall include sufficient directors
appointed by USA to equal its percentage of ownership of AG. Said
appointments to be in accordance with the laws of the Federal Republic
of Germany.
5. It is understood and agreed that the raising of said Investment Capital
by AG from third party investors, shall be in exchange for shares of
stock of AG not to exceed thirty-four percent (34%) of the outstanding
shares of AG. It is agreed that any such dilution shall apply equally
to the holdings of AG by ATI and USA, respectively.
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6. The share of certificates of AG shall be delivered to USA not later
than ten (30) days after the execution of the License Agreement. Should
said shares not be delivered to USA within the said time, then in that
event, Nurescell may forthwith terminate said License Agreement.
7. CORPORATE GOVERNANCE
a. As further consideration for AG to enter into this Agreement, USA shall
cause to be named to the Board of Directors of USA, one director as
specified by Mr. Jim Samuelson who shall also be named President of
USA. Mr. William A. Wilson shall forthwith resign as President while
retaining his position as Chairman of the Board. Said resignation shall
be signed upon execution of this Agreement. William A. Wilson, Shelby
Brewer and John Longenecker shall each, within five (5) days of
execution of this Agreement, execute and deliver their resignations as
members of the Board to the corporate secretary of USA pending the
receipt by USA of the $1 million due under the License Agreement.
Except as specified in this paragraph and provided that AG is not in
default under the License Agreement, without prior written approval of
both Boards of Directors, neither USA nor AG shall make any changes in
their respective corporate management, including members of the Board,
until such time that the full One Million Dollars ($1,000,000) due
under the License Agreement has been paid.
8. MISCELLANEOUS
a. GOVERNING LAWS: WAIVER JURY. This Agreement and the obligations of the
parties hereunder shall be interpreted, construed and enforced in
accordance with the internal laws of the State of California. In the
event of legal proceedings, the parties hereby knowingly, voluntarily
and intentionally WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS,
REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS OR
ACTIONS OF EITHER PARTY. EACH OF THE PARTIES CONSENT TO THE
JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA.
b. ENTIRE AGREEMENT. This Agreement and the License Agreement referred to
herein contain the entire agreement between the parties hereto with
respect to the subject matter hereof. No variations from, modifications
of, amendments to or changes in this Agreement shall be binding upon
any party hereto unless set forth in a document duly executed by or on
behalf of such party.
c. SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be invalid or unenforceable
to any extent the remainder of this Agreement and the application of
such provisions to other Persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
d. ATTORNEY FEES. If any litigation arises between the parties concerning
this Agreement or its enforcement the prevailing party in such
litigation shall be entitled to collect in such action from the
non-prevailing party all costs of such litigation, including reasonable
attorney fees at all levels of proceedings.
e. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
f. PUBLICITY. Each of the party shall have the right to review before
issuance the other's press releases, or any other public statements,
with respect to the transactions contemplated hereby; provided,
however, each of the companies shall be entitled, without prior
consultation with or approval of the other, to make any press release
or other public disclosure with respect to transactions as is required
by applicable laws and regulations of the jurisdictions of the United
States of America and/or the Federal Republic of Germany.
g. FURTHER ASSURANCE. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry
out the intent and to accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
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h. REMEDIES. No provision of this Agreement providing for any specific
remedy to a party shall be construed to limit such party to the
specific remedy described, and any other remedy that would otherwise be
available to such party at law or in equity shall also be available.
i. COUNTERPARTS; EXECUTION BY FACSIMILE. This Agreement and/or any
amendments to this Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Any
signature transmitted via facsimile shall be deemed an original
signature for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Investment
Agreement effective as of the day and year first written above.
NURESCELL AG
NURESCELL, INC. An entity formed under the laws of the
a Nevada corporation Federal Republic of Germany
By: _______________________________ By: _______________________________
Its: ______________________________ Its: ______________________________
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EXHIBIT A
FORM OF NOTICE OF CALL OPTION
Pursuant to the Investment Agreement executed the ____ day of
__________, ____, AG herewith exercises its Call Option rights pursuant to said
agreement by requesting USA to deliver to AG ______ shares of stock of USA at a
price in accordance with said agreement of ____________, which is based upon
eighty percent (80%) of the average five (5) day bid price trading range of said
USA stock for the period _____ - _____.
Executed this _____ day of ___________, 2000.
NURESCELL AG
An entity formed under the laws of the Federal Republic
of Germany
By: ________________________________
Its: _______________________________
