EXHIBIT 2.1
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AGREEMENT FOR PURCHASE AND SALE OF
COMMON STOCK BY AND AMONG
INTEGRATED PACKAGING ASSEMBLY CORPORATION,
OSE, INC. AND THE SHAREHOLDERS OF OSE, INC.
October 29, 1999
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TABLE OF CONTENTS
Page
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Section 1 PURCHASE AND SALE OF SHARES.............................. 1
1.1 Purchase and Sale of Shares............................. 1
1.2 Closing................................................. 1
SECTION 2 THE COMPANY'S REPRESENTATIONS AND WARRANTIES............. 2
2.1 Organization and Standing............................... 2
2.2 Corporate Power......................................... 2
2.3 Capitalization.......................................... 2
2.4 Authorization........................................... 2
2.5 SEC Reports; Financial Statements....................... 3
2.6 Compliance With Other Instruments....................... 4
2.7 Governmental Consents................................... 4
2.8 No Finder's Fee......................................... 4
SECTION 3 REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇................... 4
3.1 Organization and Standing............................... 4
3.2 Corporate Power......................................... 5
3.3 Subsidiaries............................................ 5
3.4 Capitalization.......................................... 5
3.5 Authorization........................................... 5
3.6 Financial Statements.................................... 5
3.7 Title................................................... 6
3.8 Patents and Trademarks.................................. 6
3.9 Litigation.............................................. 6
3.10 Compliance With Other Instruments....................... 7
3.11 Insurance............................................... 7
3.12 Governmental Consents................................... 7
3.13 No Finder's Fee......................................... 7
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS....... 7
4.1 Legal Power............................................. 7
4.2 Authorization........................................... 8
4.3 Compliance With Other Instruments....................... 8
4.4 Governmental Consents................................... 8
4.5 No Finder's Fee......................................... 8
4.6 Good Title.............................................. 8
4.7 ▇▇▇▇ Representations.................................... 9
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TABLE OF CONTENTS
(continued)
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4.8 Investment Representations.............................. 9
4.9 Legends................................................. 10
4.10 Tax Advisors............................................ 10
4.11 Investor Counsel........................................ 10
SECTION 5 CONDITIONS TO CLOSING.................................... 10
5.1 Conditions to Company's Obligations..................... 10
5.2 Conditions to Obligations of Shareholders............... 11
5.3 Covenants of the Parties................................ 11
SECTION 6 MISCELLANEOUS............................................ 12
6.1 Waivers and Amendments.................................. 12
6.2 Severability............................................ 12
6.3 Survival................................................ 12
6.4 Notices, etc............................................ 12
6.5 Entire Agreement........................................ 14
6.6 Governing Law........................................... 14
6.7 Expenses................................................ 15
6.8 Attorneys' Fees; Limitation of Liability................ 15
6.9 Titles and Subtitles.................................... 15
6.10 Counterparts............................................ 15
Exhibit A - Schedule of ▇▇▇▇ Shareholders
Exhibit B - IPAC Schedule of Exceptions
Exhibit C - ▇▇▇▇ Schedule of Exceptions
Exhibit D - Sales Distributor Agreement
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AGREEMENT FOR PURCHASE AND SALE OF
COMMON STOCK BY AND AMONG
INTEGRATED PACKAGING ASSEMBLY CORPORATION,
OSE, INC. AND THE SHAREHOLDERS OF OSE, INC.
This Agreement is entered into as of October 29, 1999, by and among
Integrated Packaging Assembly Corporation, a Delaware corporation (the
"Company"), OSE, Inc., a California corporation ("▇▇▇▇"), and the shareholders
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of ▇▇▇▇ listed on Exhibit A hereto (individually, a "Shareholder" and
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collectively, the "Shareholders").
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RECITALS
A. The Shareholders currently hold of record and beneficially all of the
outstanding shares of capital stock of ▇▇▇▇ (the "▇▇▇▇ Shares").
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B. The parties desire that the Company purchase the ▇▇▇▇ Shares held by
the Shareholders at a purchase price of approximately $58.83 per share, for an
aggregate purchase price of approximately $5,000,000.
SECTION 1
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PURCHASE AND SALE OF SHARES
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1.1 Purchase and Sale of Shares. At the Closing (as defined herein), the
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Shareholders will severally sell to the Company and the Company will severally
purchase from the Shareholders all of the ▇▇▇▇ Shares at a price of
approximately $58.83 per share, with the purchase price to be paid in shares of
the Company's common stock (the "IPAC Shares"). For purposes of this
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Agreement, the IPAC Shares shall be valued at $0.1930 per share which equals the
average of the closing price of the Company's common stock for the twenty (20)
trading days ending on the day prior to the date hereof. As a result, each ▇▇▇▇
Share shall be exchanged for 304.8246 IPAC Shares and all of the ▇▇▇▇ Shares
shall be exchanged for an aggregate of 25,910,090 IPAC Shares as indicated on
Exhibit A hereto.
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1.2 Closing. The closing of the purchase and sale of the ▇▇▇▇ Shares (the
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"Closing") shall occur at such date (the "Closing Date") and such location as
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the parties shall mutually agree, as soon as practicable following the
satisfaction or waiver of each of the conditions to closing set forth in Section
5 hereof. At the Closing, each of the Shareholders shall deliver to the Company
a stock certificate representing the ▇▇▇▇ Shares to be sold by such Shareholder
to the Company as indicated on Exhibit A and the Company shall be obligated to
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issue to such Shareholder a certificate representing the number of IPAC Shares
to be issued to such Shareholder as indicated on Exhibit A. The Company hereby
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covenants with each Shareholder to deliver the certificates representing the
IPAC Shares to such Shareholder as soon as practical following the Closing Date.
SECTION 2
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THE COMPANY'S REPRESENTATIONS AND WARRANTIES
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Except as set forth in the Schedule of Exceptions to the representations
and warranties of the Company attached hereto as Exhibit B, the Company
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represents and warrants to each Shareholder, as follows. Where used in this
Section 2, the terms "to the knowledge of the Company," "of which the Company
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is aware" or similar terms mean the actual knowledge of the executive officers
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of the Company.
2.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Delaware and is in
good standing as a domestic corporation under the laws of said state. The
Company has all requisite corporate power and authority to own and lease its
properties and to conduct its business as presently conducted. The Company is
qualified as a foreign corporation in all jurisdictions in which it conducts
business, other than any such jurisdiction where the failure to be so qualified
will not have a material adverse effect on the Company's business as now
conducted.
2.2 Corporate Power. The Company has all requisite legal and corporate
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power to execute and deliver this Agreement, to purchase the ▇▇▇▇ Shares
hereunder, to issue the IPAC Shares hereunder and to carry out and perform its
obligations under the terms of this Agreement.
2.3 Capitalization. The authorized capital stock of the Company consists
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of (i) 200,000,00 shares of common stock (the "IPAC Common Stock") and (ii)
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10,000,000 shares of preferred stock, of which 3,000,000 shares are designated
"Series A Preferred Stock." There are 28,507,012 shares of IPAC Common Stock
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issued and outstanding (plus any additional shares issued since September 27,
1999 on exercise of options). No subscription, warrant, option or other right to
purchase or acquire any shares of any class of capital stock of the Company or
securities convertible into or exchangeable for such capital stock are
outstanding other than: (i) 41,246,312 shares reserved for issuance upon
conversion of the outstanding shares of Series A Preferred, (ii) 20,000,000
shares reserved for issuance pursuant to the Company's 1993 Stock Option Plan,
(iii) 750,000 shares reserved for issuance pursuant to the Company's
Nonstatutory Stock Option Plan, (iv) 100,000 shares reserved for issuance
pursuant to the Company's 1996 Director Option Plan, (v) 2,000,000 shares
reserved for issuance pursuant to the Company's Employee Stock Purchase Plan and
(vi) 4,000,000 shares reserved for issuance pursuant to the Company's 1999
Director Stock Option Plan.
2.4 Authorization. The execution, delivery and performance of this
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Agreement by the Company have been duly authorized by all requisite corporate
action, and this Agreement constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights, or rules of law governing
specific performance, injunctive relief or other equitable remedies. All
corporate action on the part of the Company, its directors and stockholders
necessary for the authorization, issuance and delivery of the IPAC Shares has
been taken or will be taken prior to the Closing. No stockholder has any
preemptive rights or
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rights of first refusal by reason of the issuance of the IPAC Shares. The IPAC
Shares, when issued, sold and delivered in compliance with the provisions of
this Agreement will be duly and validly issued, fully paid and nonassessable and
will be free of any liens or encumbrances; provided, however, that the IPAC
Shares are subject to restrictions on transfer under state and/or federal
securities laws.
2.5 SEC Reports; Financial Statements.
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(a) The Company has delivered to the ▇▇▇▇ shareholders (or such
shareholders have otherwise obtained) a complete and accurate copy of each
report, schedule, registration statement and definitive proxy statement filed by
the Company with the Securities and Exchange Commission (the "SEC") on or after
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January 1, 1999 (the "SEC Reports"), which are all the forms, reports and
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documents required to be filed by the Company with the SEC on or after January
1, 1999. The SEC Reports (i) complied in all material aspects with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
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or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the
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case may be, at and as of the times they were filed (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) and (ii) did not at and as of the time they were filed (or, if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The financial statements (including any related notes thereto)
contained in the SEC Reports (collectively, the "IPAC Financial Statements")
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were prepared in accordance with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved (except
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as may be indicated in the notes thereto) and fairly present the consolidated
financial position of the Company as at the respective dates thereof and the
consolidated results of its operations and cash flows for the periods indicated,
except that the quarterly unaudited interim financial statements included in the
IPAC Financial Statements were or are subject to normal year-end audit
adjustments which were not or are not expected to be material in amount.
(c) Since the date of filing of the most recent SEC Report (or, if
amended or superseded by a filing prior to the date of this Agreement, then the
date of such filing) there has not been any change, or any development or
combination of changes or developments that has resulted in or could reasonably
be expected to result in a material adverse change in the assets, financial
condition or affairs of the Company.
2.6 Compliance With Other Instruments. The Company is not in violation or
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breach of any term of its Certificate of Incorporation or Bylaws or to its
knowledge in violation or breach of any term of any indenture, mortgage, deed of
trust or other agreement, instrument, court order, judgment, decree, statute,
rule or regulation to which it is a party or by which it is bound, the violation
or breach of which is likely to result in a material adverse change in the
assets, financial condition or affairs of the Company. The execution, delivery
and performance of and compliance with this Agreement, including the purchase by
the Company of the ▇▇▇▇ Shares and the issuance of the IPAC Shares, will not
result in any such violation or be in conflict with or constitute a default
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under any such term or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company
pursuant to any such term.
2.7 Governmental Consents. No consent, approval or authorization of, or
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designation, declaration or filing with, any Federal or state governmental
authority in the United States is required on the part of the Company in
connection with the valid execution and delivery of this Agreement, the purchase
of the ▇▇▇▇ Shares, the issuance of the IPAC Shares or the consummation of any
other transaction contemplated hereby, except if required, qualifications or
filings in connection with exemptions under any applicable state "blue sky" laws
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and Federal securities laws, which qualifications or exemptions, if required,
will have been obtained and will be effective on the Closing Date, or will be
obtained or filed after the Closing Date within the prescribed time in order to
secure such exemptions or qualifications.
2.8 No Finder's Fee. Except as set forth on Exhibit B, the Company has
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retained no finder or broker in connection with the transactions contemplated by
this Agreement and hereby agrees to indemnify and to hold each ▇▇▇▇ Shareholder
harmless of and from any liability for commission or compensation in the nature
of a finder's fee to any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company, or any of its employees or representatives, are responsible.
SECTION 3
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REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇
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Except as set forth in the Schedule of Exceptions to the representations
and warranties of ▇▇▇▇ attached hereto as Exhibit C, ▇▇▇▇ represents and
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warrants to the Company, as follows. Where used in this Section 3, the terms
"to the knowledge of ▇▇▇▇, " "of which ▇▇▇▇ is aware" or similar terms mean the
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actual knowledge of the executive officers of ▇▇▇▇.
3.1 Organization and Standing. ▇▇▇▇ is a corporation duly organized and
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validly existing under the laws of the state of California and is in good
standing as a domestic corporation under the laws of said state. ▇▇▇▇ has all
requisite corporate power and authority to own and lease its properties and to
conduct its business as presently conducted. ▇▇▇▇ is qualified as a foreign
corporation in all jurisdictions in which it conducts business, other than any
such jurisdiction where the failure to be so qualified will not have a material
adverse effect on ▇▇▇▇'▇ business as now conducted.
3.2 Corporate Power. ▇▇▇▇ has all requisite legal and corporate power to
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execute and deliver this Agreement and to carry out and perform its obligations
under the terms of this Agreement.
3.3 Subsidiaries. ▇▇▇▇ does not presently control, directly or
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indirectly, any other corporation, partnership, business trust, association or
other business entity, except as listed on Exhibit C.
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3.4 Capitalization. The authorized capital stock of ▇▇▇▇ consists of
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1,000,000 shares of common stock (the "▇▇▇▇ Common Stock"). There are 85,000
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shares of ▇▇▇▇ Common Stock issued and outstanding, all of which are held by the
Shareholders in the amounts listed in Exhibit C. No subscription, warrant,
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option or other right to purchase or acquire any shares of any class of capital
stock of ▇▇▇▇ or securities convertible into or exchangeable for such capital
stock are outstanding.
3.5 Authorization. The execution, delivery and performance of this
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Agreement by ▇▇▇▇ have been duly authorized by all requisite corporate action,
and this Agreement constitutes a valid and binding obligation of ▇▇▇▇
enforceable in accordance with its respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights, or rules of law governing
specific performance, injunctive relief or other equitable remedies.
3.6 Financial Statements. ▇▇▇▇'▇ unaudited financial statements for the
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quarter ended June 30, 1999 (the "▇▇▇▇ Financial Statements") have been
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delivered to the Company. The ▇▇▇▇ Financial Statements present fairly the
financial condition, operating results and cash flows of ▇▇▇▇ in all material
respects as of their date and for the period then ended and have been prepared
in accordance with GAAP applied on a consistent basis throughout the periods
indicated, except that no notes have been included in the ▇▇▇▇ Financial
Statements and the ▇▇▇▇ Financial Statements are subject to year-end
adjustments, consisting only of normal, recurring adjustments necessary to
present the ▇▇▇▇ Financial Statements fairly in accordance with GAAP which
adjustments will not be material in amount.
Since June 30, 1999, there has not been any change in the assets,
liabilities, financial condition or operations of ▇▇▇▇ from that reflected in
the ▇▇▇▇ Financial Statements, other than changes in the ordinary course of
business, none of which individually or in the aggregate has had a materially
adverse effect on such assets, liabilities, financial condition or operations of
▇▇▇▇.
Except as shown or reflected in the ▇▇▇▇ Financial Statements, ▇▇▇▇
does not have outstanding on the date of this Agreement any material
indebtedness or liability (absolute or contingent), except those incurred in the
ordinary course of business since June 30, 1999.
3.7 Title. ▇▇▇▇ has good title to all properties and assets owned by it,
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other than any deficiencies in title which, individually or in the aggregate,
are not material to the business or properties of ▇▇▇▇ as a whole. ▇▇▇▇'▇
properties and assets are not subject to any liens, mortgages, pledges,
encumbrances or charges of any kind, except liens for current taxes and
assessments not delinquent and except any such liens, mortgages, pledges,
encumbrances or charges which, individually or in the aggregate, are not
material to the business or properties of ▇▇▇▇ as a whole. All material leases
pursuant to which ▇▇▇▇ leases real or personal property are in good standing and
are valid and effective in accordance with their respective terms, and there
exists no material default or other occurrence or condition which could result
in a material default or termination of any such lease.
3.8 Patents and Trademarks. ▇▇▇▇, to its knowledge, has sufficient title
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to, ownership of or the right to use, or believes it can obtain on reasonable
terms the right to use, all patents,
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trademarks, service marks, trade names, copyrights, trade secrets, software
programs, information, proprietary rights and processes ("Proprietary Rights")
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necessary to conduct its business as now conducted, and, to ▇▇▇▇'▇ knowledge,
▇▇▇▇'▇ ownership or use of such Proprietary Rights does not and will not
conflict with or infringe upon the rights of others. ▇▇▇▇ has not received any
written communications (or, to the knowledge of the executive officers of ▇▇▇▇,
any oral communications) alleging that ▇▇▇▇ has violated any of the Proprietary
Rights of any other person.
3.9 Litigation. There is no action, suit, proceeding or investigation
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pending or, to ▇▇▇▇'▇ knowledge, currently threatened against ▇▇▇▇ which
questions the validity of this Agreement, or the right of ▇▇▇▇ to enter into
this Agreement or to consummate the transactions contemplated hereby or thereby,
or which is likely to result, either individually or in the aggregate, in any
material adverse change in the assets, financial condition or affairs of ▇▇▇▇ or
any change in the current equity ownership of ▇▇▇▇. The foregoing includes,
without limitation, actions known to ▇▇▇▇ that are pending or threatened and
which involve the prior employment of any of ▇▇▇▇'▇ employees, their use in
connection with ▇▇▇▇'▇ business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations under any
agreements with prior employers. ▇▇▇▇ is not to its knowledge a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality.
3.10 Compliance With Other Instruments. ▇▇▇▇ is not in violation or breach
---------------------------------
of any term of its Articles of Incorporation or Bylaws or to its knowledge in
violation or breach of any term of any indenture, mortgage, deed of trust or
other agreement, instrument, court order, judgment, decree, statute, rule or
regulation to which it is a party or by which it is bound, the violation or
breach of which is likely to result in a material adverse change in the assets,
financial condition or affairs of ▇▇▇▇. The execution, delivery and performance
of and compliance with this Agreement will not result in any such violation or
be in conflict with or constitute a default under any such term or result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of ▇▇▇▇ pursuant to any such term.
3.11 Insurance. ▇▇▇▇ has fire, casualty and liability insurance policies
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with recognized insurers, in such amounts and with such coverage as are
customary for similarly situated companies.
3.12 Governmental Consents. No consent, approval or authorization of, or
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designation, declaration or filing with, any Federal or state governmental
authority in the United States is required on the part of ▇▇▇▇ in connection
with the valid execution and delivery of this Agreement or the consummation of
any transaction contemplated hereby, except if required, qualifications or
filings in connection with exemptions under any applicable state "blue sky"
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laws and Federal securities laws, which qualifications or exemptions, if
required, will have been obtained and will be effective on the Closing Date, or
will be obtained or filed after the Closing Date within the prescribed time in
order to secure such exemptions or qualifications.
3.13 No Finder's Fee. ▇▇▇▇ has retained no finder or broker in
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connection with the transactions contemplated by this Agreement and hereby
agrees to indemnify and to hold the Company harmless of and from any liability
for commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
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liability or asserted liability) for which ▇▇▇▇, or any of its employees or
representatives, are responsible.
SECTION 4
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REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
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Each of the Shareholders, severally and not jointly, represents and
warrants to the Company with respect to the ▇▇▇▇ Shares to be sold by such
Shareholder, as follows:
4.1 Legal Power. Shareholder has all requisite legal power to execute and
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deliver this Agreement, to sell and convey the ▇▇▇▇ Shares hereunder, and to
carry out and perform its obligations under the terms of this Agreement.
4.2 Authorization. The execution, delivery and performance of this
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Agreement by Shareholder has been duly authorized by all requisite corporate,
partnership or other action if the Shareholder is not an individual, and this
Agreement constitutes a valid and binding obligation of Shareholder enforceable
against it in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights, or rules of law governing
specific performance, injunctive relief or other equitable remedies.
4.3 Compliance With Other Instruments. The execution, delivery and
---------------------------------
performance of and compliance with this Agreement by Shareholder and the sale
and transfer of the ▇▇▇▇ Shares by such Shareholder pursuant to the terms
hereof, will not result in any violation or breach of any term of its charter
documents if the Shareholder is not an individual, or to its knowledge any
violation or breach by it of any term of any indenture, mortgage, deed of trust
or other agreement, instrument, court order, judgment, decree, statute, rule or
regulation to which it is a party or by which it is bound or be in conflict with
or constitute a default under any such term or result in the creation of any
mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of Shareholder.
4.4 Governmental Consents. No consent, approval or authorization of, or
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designation, declaration or filing with, any Federal or state governmental
authority in the United States is required on the part of Shareholder in
connection with the valid sale and transfer of the ▇▇▇▇ Shares or the
consummation of any other transaction contemplated hereby, except, if required,
qualifications or filings in connection with exemptions under any applicable
state "blue sky" laws and Federal securities laws, which qualifications or
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exemptions, if required, will have been obtained and will be effective on the
Closing Date, or will be obtained or filed after the Closing Date within the
prescribed time in order to secure such exemptions or qualifications.
4.5 No Finder's Fee. Shareholder has retained no finder or broker in
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connection with the transactions contemplated by this Agreement and hereby
agrees to indemnify and to hold the Company harmless of and from any liability
for any commission or compensation in the nature of a finder's fee to any broker
or other person or firm (and the costs and expenses of defending against
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such liability or asserted liability) for which Shareholder, or any of its
employees or representatives, is responsible.
4.6 Good Title. Shareholder has, and on the Closing Date will have, good
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and marketable title to the ▇▇▇▇ Shares proposed to be sold by such person
hereunder on such Closing Date and full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver such ▇▇▇▇ Shares
hereunder, free and clear of all voting trust arrangements, liens, encumbrances,
equities, security interests, restrictions and claims whatsoever, other than
restrictions imposed by applicable federal and state securities laws; and upon
delivery of and payment for such ▇▇▇▇ Shares hereunder, the Company will acquire
good and marketable title thereto, free and clear of all liens, encumbrances,
equities, claims, restrictions, security interests, voting trusts or other
defects of title whatsoever, other than restrictions imposed by applicable
federal and state securities laws.
4.7 ▇▇▇▇ Representations. To the best of such Shareholder's knowledge,
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each of the representations and warranties made by ▇▇▇▇ in Section 3 hereof are
true and correct.
4.8 Investment Representations.
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(a) This Agreement is made by the Company with each Shareholder in
reliance upon such Shareholder's representations and covenants made in this
Section 4.7, which by his execution of this Agreement the Shareholder hereby
confirms.
(b) Shareholder understands that the IPAC Shares have not been
registered under the Securities Act and are being offered and sold pursuant to
an exemption from registration contained in the Securities Act based upon the
representations of each Shareholder contained herein.
(c) Shareholder knows of no public solicitation or advertisement of
an offer in connection with the proposed issuance and sale of the IPAC Shares.
(d) Shareholder is acquiring the IPAC Shares to be issued and sold
hereunder for his own account for investment and not as a nominee and not with a
view to the distribution thereof. Shareholder understands that he must bear the
economic risk of this investment indefinitely unless the IPAC Shares are
registered pursuant to the Securites Act, or an exemption from such registration
is available, and that the Company has no present intention of registering the
IPAC Shares. Shareholder further understands that there is no assurance that any
exemption from the Securities Act will be available or, if available, that such
exemption will allow Shareholder to dispose of or otherwise transfer any or all
of the IPAC Shares under the circumstances, in the amounts or at the times
Shareholder might propose.
(e) By reason of his business or financial experience, Shareholder
has the capacity to protect his own interests in connection with the purchase of
the IPAC Shares hereunder and has the ability to bear the economic risk
(including the risk of total loss) of his investment.
(f) Each Shareholder further covenants that he will not make any
sale, transfer or other disposition of the IPAC Shares in violation of the
Securities Act, the Exchange Act or the rules of the SEC promulgated thereunder.
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(g) Shareholder acknowledges that the Company's transfer agent shall
make a notation in its stock books regarding the restrictions on transfer set
forth in this Section 4.7 and shall transfer such shares on its books only to
the extent permitted hereunder.
4.9 Legends. Shareholder understands and acknowledges that the
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certificate evidencing his IPAC Shares will be imprinted with a legend referring
to the applicable restrictions on the IPAC Shares pursuant to the Securities
Act.
4.10 Tax Advisors. Shareholder has reviewed with his own tax advisors the
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federal, state and local tax consequences of this transaction, where applicable,
and the transactions contemplated by this Agreement. Each Shareholder is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents and understands that each Shareholder (and not the
Company) shall be responsible for the Shareholder's own tax liability that may
arise as a result of the transactions contemplated by this Agreement.
4.11 Investor Counsel. Shareholder acknowledges that he has had the
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opportunity to review this Agreement, the exhibits and the schedules attached
hereto and the transactions contemplated by this Agreement with his own legal
counsel. Each Shareholder is relying solely on such counsel and not on any
statements or representations of the Company or any of its agents for legal
advice with respect to the transactions contemplated by this Agreement.
SECTION 5
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CONDITIONS TO CLOSING
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5.1 Conditions to Company's Obligations. The Company's obligation to
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purchase the ▇▇▇▇ Shares from the Shareholders at the Closing is subject to the
fulfillment to the Company's satisfaction or prior to the Closing Date of the
following conditions, any of which may be waived in whole or in part by the
Company:
(a) The representations and warranties made by ▇▇▇▇ in Section 3
hereof and by the Shareholders in Section 4 hereof shall be true and correct
when made and as of the Closing Date.
(b) All covenants, agreements and conditions contained in this
Agreement to be performed by the Company and the Shareholders on or prior to the
Closing Date shall have been performed or complied with.
(c) All matters of a legal nature which pertain to this Agreement,
and the transactions contemplated hereby, shall have been approved by counsel to
the Company.
(d) ▇▇▇▇ and Orient Semiconductor Electronics Limited ("OSE") shall
---
have entered into a Sales Distributor Agreement in the form attached hereto as
Exhibit D and such agreement shall be in full force and effect.
---------
-9-
5.2 Conditions to Obligations of Shareholders. The obligations of the
-----------------------------------------
Shareholders to sell and convey the ▇▇▇▇ Shares at the Closing is subject to the
fulfillment to the satisfaction of Shareholders, on or prior to the Closing Date
of the following conditions, any of which may be waived in whole or in part by
the Shareholders:
(a) The representations and warranties made by the Company in Section
2 hereof shall be true and correct when made and as of the Closing Date.
(b) All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with.
(c) All matters of a legal nature which pertain to this Agreement,
and the transactions contemplated hereby, shall have been approved by counsel to
▇▇▇▇.
5.3 Covenants of the Parties.
------------------------
(a) Each of the Company, ▇▇▇▇ and the Shareholders hereby covenants
and agrees to use all reasonable efforts to effect the closing of the
transactions contemplated hereby at the earliest possible date.
(b) The Company agrees that each of the employees of ▇▇▇▇ on the
Closing Date shall be entitled to participate in all employee benefit programs
and stock option plans of the Company to the same extent as other similarly
situated employees of the Company.
(c) The Company covenants and agrees with ▇▇▇▇ and each of the
Shareholders that it shall cause ▇▇▇▇ to declare and pay a dividend to the
Shareholders of those investments held by ▇▇▇▇ as listed in Section 3.3 of
Exhibit C.
---------
(d) Each of the Shareholders and ▇▇▇▇ agree to take all actions which
may be necessary to cause the financial statements of ▇▇▇▇ for the last three
fiscal years to be audited and to cause such audited financial statements to be
delivered to the Company no later than December 1, 1999.
(e) The Company and OSE shall take all such actions as may be
reasonably necessary to cause the Registration Rights Agreement between the
Company, OSE and certain other parties to be amended to cause the IPAC Shares
being issued hereunder to be "Registrable Securities" under such agreement.
-10-
SECTION 6
---------
MISCELLANEOUS
-------------
6.1 Waivers and Amendments. The rights or obligations of any party
----------------------
hereunder under this Agreement may be waived upon the written consent of such
party. This Agreement may be amended upon the written consent of the Company,
▇▇▇▇ and each of the Shareholders.
6.2 Severability. In the event that any provision of this Agreement shall
------------
be deemed to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
6.3 Survival. The representations, warranties, covenants and agreements
--------
made herein shall survive any investigation made by any party hereto and the
Closing of the transactions contemplated hereby.
6.4 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be delivered (a) personally;
(b) by facsimile transmission (with verification of transmission without error,
and with copy promptly sent by United States Postal Service (first class mail)
or Federal Express or similar courier); (c) by Federal Express or similar
overnight courier; or (d) by United States Postal Service (first class mail); in
each case with all delivery or postal charges pre-paid. Notices shall be
addressed
(i) if to the Company, to
Integrated Packaging Assembly Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
or at such other address as the Company shall have furnished to
the Shareholders in writing.
-11-
(ii) if to ▇▇▇▇, to
OSE, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
with a copy to:
Cooley Godward, LLP
3000 El Camino Real
Five ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or at such other address as ▇▇▇▇ shall have furnished to the
Company in writing.
(iii) if to a Shareholder, at the address of such Shareholder on
the signature pages hereto, or at such other address as each such Shareholder
shall have furnished to the Company in writing.
Each such notice or communication, addressed and posted as aforesaid,
shall for all purposes of this Agreement be treated as effective or having been
given (a) when delivered, if delivered personally; (b) if delivered by facsimile
transmission as provided above, then on the same day if the transmission is
completed and received by 5:00 p.m. on a business day or, if the transmission is
completed and received after 5:00 p.m. on any business day or at any time on a
non-business day, then on the next business day; (c) one (1) business day after
the business day of deposit with Federal Express or similar courier, if
delivered by such means; or (d) upon the earlier of its receipt or five (5)
business days after the business day of deposit with the United States Postal
Service (first class mail) if delivered by such means.
6.5 Entire Agreement. This Agreement and the exhibits hereto constitute
----------------
the full and entire understanding and agreement among the parties with regard to
the subjects hereof and supersede any and all prior agreements and
understandings among the parties.
6.6 Governing Law. This Agreement shall be governed by and construed and
-------------
enforced in accordance with the laws of the State of California and the Federal
laws of the California as they apply to contracts entered into and wholly to be
performed within the State of by residents of such state.
-12-
6.7 Expenses. Each party hereto shall each bear all expenses that such
--------
respective party has incurred or incurs in connection with this Agreement and
the transactions contemplated hereby, and any amendments or waivers hereto.
6.8 Attorneys' Fees; Limitation of Liability. In the event of any
----------------------------------------
litigation in a court of competent jurisdiction arising in connection with this
Agreement and the transactions contemplated hereby, the prevailing party in
judgment shall be entitle to recover reasonable legal fees and costs in
connection with such action. Except in the case of fraud on the part of a
Shareholder, the total amount of all payments that such Shareholder can be
required to make under or in connection with this Agreement shall be limited to
the aggregate purchase price for such Shareholder's ▇▇▇▇ Shares.
6.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
[Remainder of page intentionally left blank]
-13-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first written above.
COMPANY: INTEGRATED PACKAGING ASSEMBLY
CORPORATION, a Delaware corporation
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President and Chief
Executive Officer
▇▇▇▇: OSE, INC., (USA)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: President
--------------------------------------
▇▇▇▇ SHAREHOLDERS: ORIENT SEMICONDUCTOR ELECTRONICS,
LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-----------------------------------------
Title: President
--------------------------------------
Address: ▇▇-▇, ▇▇▇-▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ROC
--------------------------------------------
____________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Address:____________________________________
/s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
------------------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------
-14-
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇
Address: 5F-5, No.33, Ming Che Road
---------------------------------------------
San Ming District 807, Kaohsiung,
---------------------------------------------
Taiwan R.O.C
/s/ ▇▇▇▇▇▇ Duh
---------------------------------------------
▇▇▇▇▇▇ Duh
Address: ▇▇. ▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
---------------------------------------------
R.O.C
-15-
Exhibit A
---------
Schedule of ▇▇▇▇ Shareholders
-----------------------------
▇▇▇▇ Shares IPAC Shares
----------- -----------
Orient Semiconductor Electronics, Limited 16,000 4,877,193
▇▇▇▇▇▇ ▇▇▇▇▇ 15,000 4,572,369
▇▇▇ ▇▇▇▇▇▇▇ 15,000 4,572,369
▇▇▇▇▇ ▇▇▇▇▇ 15,000 4,572,369
▇▇▇▇▇▇ ▇▇▇ 14,000 4,267,544
▇▇▇▇▇▇ Duh 10,000 3,048,246
------ ----------
Total 85,000 25,910,090
====== ==========
-i-