Exhibit 99.1
IMP, INC.
STOCK PURCHASE AGREEMENT
JUNE 12, 2002
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of June 12, 2002 (the
"Agreement"), is entered into by and among IMP, Inc., a Delaware corporation
(the "Company"), and the purchasers listed on Exhibit A hereto (collectively,
the "Purchasers").
RECITALS
A. Each of the Purchasers is a vendor that has provided goods and/or
services to the Company. The value of such goods and/or services
provided by each Purchaser is set forth on Exhibit A, which shall
be the consideration for the issuance of the Shares (as defined
below).
B. The Company proposes to issue and sell to the Purchasers, and the
Purchasers propose to purchase from the Company, shares (the
"Shares") of the Company's common stock, par value $0.01 per
share (the "Common Stock"), in accordance with the terms and
subject to the conditions set forth in this Agreement.
C. The Company has agreed to use its commercially reasonable efforts
to register the resale of the Shares by the Purchasers on a
registration statement on Form S-1 to be filed with the
Securities and Exchange Commission.
NOW, THEREFORE, in consideration of the promises and the covenants and
agreements of the parties herein contained, and intending to be legally bound,
the parties hereby agree as follows:
AGREEMENT
ARTICLE 1
PURCHASE AND SALE OF STOCK
SECTION 1.1. Closing.
(a) In accordance with the terms and subject to the conditions set forth
in this Agreement, each Purchaser agrees, severally and not jointly, to purchase
at the Closing (as defined below), and the Company agrees to sell and issue to
such Purchaser at the Closing, the number of shares of Common Stock set forth
next to such Purchaser's name on Exhibit A for a per share purchase price equal
to ninety percent (90%) of the average of the closing prices for the Common
Stock on the Nasdaq SmallCap Market for the 10 trading days ending on the second
trading day immediately prior to the Closing Date (as defined below).
(b) The purchase and sale of the Shares ( the "Closing") shall take
place at the offices of the Company at 9:00 a.m., San ▇▇▇▇ time, on the second
business day after the satisfaction or waiver of all of the conditions to the
parties' respective obligations, or at such other time and place as the Company
and the Purchasers purchasing a majority of the Shares mutually agree upon in
writing (the "Closing Date"). At the Closing, the Company shall deliver to each
Purchaser a certificate representing the number of Shares set forth next to such
Purchaser's name
on Exhibit A against cancellation of the amount owed by the Company to such
Purchaser for goods and/or services provided to the Company as set forth on
Exhibit A.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company represents and warrants that:
SECTION 2.1. Organization. Good Standing and Foreign Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full corporate power and
authority to own, lease and operate its property and assets and to conduct its
business as presently conducted. The Company is qualified to do business as a
foreign corporation in the state of California.
SECTION 2.2. Capitalization. As of the date of this Agreement, the
authorized capital stock of the Company consists of 20,000,000 shares of Common
Stock, of which 7,273,272 shares are issued and outstanding, and 1,000,000
shares of preferred stock, none of which are issued and outstanding. As of the
date of this Agreement, (a) the Company has reserved 1,771,728 shares of Common
Stock for issuance pursuant to the exercise of options under the Company's stock
option plans, (b) there are outstanding warrants to purchase an aggregate of
319,800 shares of Common Stock and (c) there are outstanding convertible
debentures convertible into an aggregate of 1,014,493 shares of Common Stock.
There are no other warrant options, convertible securities or rights to
subscribe for or purchase any capital stock or other securities from the
Company.
SECTION 2.3. Validity of Stock. The Shares to be sold pursuant to this
Agreement, when issued, sold, and delivered in accordance with the terms of this
Agreement, will be duly and validly issued, fully paid and non-assessable.
SECTION 2.4. Authorization; Approvals. All action on the part of the
Company and its stockholders necessary for the authorization, execution and
delivery of this Agreement and the performance of the Company's obligations
hereunder, including the authorization, issuance and delivery of the Shares, has
been taken. This Agreement constitutes the valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors rights generally or by
general equitable principles.
SECTION 2.5. No Conflict with Other Instruments. The execution, delivery
and performance of this Agreement does not and will not result in any violation
of, conflict with, or constitute a default under any terms or provision of the
Company's Certificate of Incorporation, as amended, or Bylaws, as amended, (b)
any judgment, decree or order to which the Company is a party or by which its
property is bound; (c) any agreement, contract, understanding, indenture or
other instrument to which the Company is a party, the effect of which would give
rise to a material adverse effect on the Company or (d) any statute, rule or
governmental regulation applicable to the Company or any of its property.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
Each Purchaser represents and warrants, severally and not jointly, that:
SECTION 3.1. Organization; Authorization.
(a) Such Purchaser is duly incorporated or organized and validly
existing under the laws of its jurisdiction of incorporation or organization and
has power and authority to own, lease and operate its property and assets and to
conduct its business as presently conducted.
(b) All action on the part of such Purchaser necessary for the
authorization, execution and delivery of this Agreement and the performance of
such Purchaser's obligations hereunder has been taken. This Agreement
constitutes the valid and legally binding obligation of such Purchaser,
enforceable against such Purchaser in accordance with its terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors rights generally or by general
equitable principles.
SECTION 3.2. Investment Representations. Such Purchaser is acquiring the
Shares for its own account, for investment purposes and not with a view to, or
for sale in connection with, any distribution of such securities or any part
thereof in violation of federal or state securities laws.
SECTION 3.3. Investment Experience; Access to Information.
(a) Such Purchaser is an "accredited investor" as that term is defined
in Rule 501(a) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), is a sophisticated investor, is able to fend for itself in
the transactions contemplated by this Agreement, has such knowledge and
experience in financial, business and investment matters as to be capable of
evaluating the merits and risks of this investment, has the ability to bear the
economic risks of this investment, has had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Securities
Act, was not organized or reorganized for the specific purpose of acquiring the
shares, purchased by it and has been afforded the opportunity to ask questions
of, and to receive answers from, the Company and to obtain any additional
information, to the extent the Company has or could have acquired such
information without reasonable effort or expense all as necessary for such
Purchaser to make an informed investment decision with respect to the purchase
of the Shares.
(b) Such Purchaser is aware of the following:
(1) the Shares are a speculative investment which involve a
substantial degree of risk of loss by such Purchaser of such Purchaser's entire
investment in the Company and that such Purchaser understands and takes full
cognizance of the risks related to the purchase of the Shares;
(2) no federal or state agency has made any findings as to the
fairness of the terms of the offering; and
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(3) any projections or predictions that may have been made
available to any Purchaser are based on estimates, assumptions and forecasts
which may prove to be incorrect, and no assurance is given that actual results
will correspond with the results contemplated by the various projections;
(c) At no time has it been explicitly or implicitly represented,
guaranteed or warranted to any Purchaser by the Company, the agents and
employees of the Company, or any other person:
(1) that a percentage of profit and/or amount or type of
consideration will be realized as a result of this investment;
(2) that any cash dividends from Company operations or otherwise
will be made to stockholders by any specific date or will be made at all; or
(3) that any specific tax benefits will accrue as a result of an
investment in the Company.
(d) Each Purchaser has relied only on the information contained in this
Agreement, and no written or oral representation or information that is in any
way inconsistent with this Agreement and have been made or furnished to any
Purchaser in connection with the offering of the Shares, and if so made, has not
been relied upon.
(e) At no time was any Purchaser presented with or solicited by any
leaflet, public promotional meeting, newspaper or magazine article, radio or
television advertisement or any other form of advertising or general
solicitation.
(f) Each Purchaser has had prior personal or business relationships with
the Company or its affiliates, or by reason of such Purchaser's business or
financial experience (either alone or with the aid of a purchaser
representative), and each Purchaser and has the capacity to protect such
Purchaser's own interest in connection with this transaction.
(g) Each Purchaser has been advised to consult with such Purchaser's own
attorney regarding legal matters concerning an investment in the Company and has
done so to the extent such Purchaser considers necessary.
(h) Each Purchaser has received a copy of and reviewed the press
releases issued by the Company on February 27, 2001, July 10, 2001, July 18,
2001, July 23, 2001, August 21, 2001, November 20, 2001 and April 22, 2002.
SECTION 3.4. Absence of Registration. Such Purchaser understands that
the Shares to be sold and issued hereunder may not be sold by such Purchaser
unless subsequently registered under the Securities Act, or an exemption from
such registration is available.
SECTION 3.5. Restrictions on Transfer. Such Purchaser agrees that (a) it
will not offer, sell, pledge, hypothecate, or otherwise dispose of the Shares
other than to its "affiliates" unless such offer, sale, pledge, hypothecation or
other disposition is (i) registered under the Securities Act or (ii) in
compliance with an opinion of counsel to the Purchaser, delivered to the
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Company and reasonably acceptable to it, to the effect that such offer, sale,
pledge, hypothecation or other disposition thereof does not violate the
Securities Act, and (b) the certificate(s) representing the Shares shall bear a
legend stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED OTHER THAN TO AFFILIATES OF THE REGISTERED HOLDER HEREOF
UNLESS AND UNTIL REGISTERED UNDER SAID ACT OR, IN THE OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION DOES NOT VIOLATE
THE PROVISIONS THEREOF.
For purposes of this Section 3.5, "affiliate" of a Purchaser means (i)
any entity more than 10% of the voting stock or other voting interest of which
is owned, directly or indirectly through one or more intermediaries, by the
Purchaser, (ii) any entity which owns, directly or indirectly through one or
more intermediaries, more than 10% of the voting stock of the Purchaser and
(iii) any entity of which 10% or more of the voting stock is owned by an
affiliate of the Purchaser. Upon request of a holder of Shares, the Company
shall remove the legend set forth above from the certificates evidencing such
Shares or issue to such holder new certificates therefor free of such legend, if
with such request the Company shall have received an opinion of counsel selected
by the holder and reasonably satisfactory to the Company, in form and substance
reasonably satisfactory to the Company, to the effect that such Common Stock is
not required by the Securities Act to continue to bear the legend.
SECTION 3.6. Transfer Instructions. Such Purchaser agrees that the
Company may provide for appropriate transfer instructions to implement the
provisions of Section 3.5.
SECTION 3.7. Economic Risk. Such Purchaser understands that it must bear
the economic risk of the investment represented by the purchase of Shares for an
indefinite period.
SECTION 3.8. Fees and Commissions. Such Purchaser represents and
warrants that it has retained, or otherwise authorized to act, no intermediary
in connection with the transactions contemplated by this Agreement and agrees to
indemnify and hold harmless the Company from liability for any compensation to
any intermediary retained or otherwise authorized to act by, or on behalf of,
such Purchaser and the fees and expenses of defending against such liability or
alleged liability.
ARTICLE 4
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
SECTION 4.1. Conditions to Obligations of the Purchasers. The
obligations of the Purchasers on the Closing Date to purchase the Shares under
this Agreement shall be subject to each of the following conditions precedent,
which may be waived by the Purchasers:
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(a) Representations and Warranties. The representations and warranties
made by the Company herein shall be true and accurate in all material respects
on and as of the Closing Date as if made on the Closing Date.
(b) Performance. The Company shall have performed and complied in all
material respects with all agreements and conditions contained herein required
to be performed or complied with by it prior to or at the Closing.
(c) Consents, etc. The Company shall have secured all permits, consents
and authorizations that shall be necessary to consummate the transactions
contemplated by this Agreement.
(d) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory to the Purchasers.
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF COMPANY
SECTION 5.1. Conditions to Obligations of the Company. The obligations
of the Company on the Closing Date to issue and sell the Shares under this
Agreement shall be subject to the following conditions precedent, which may be
waived by the Company:
(a) Representations and Warranties. The representations and warranties
made by the Purchasers herein shall be true and accurate in all material
respects on and as of the Closing Date as if made on the Closing Date.
(b) Performance. The Purchasers shall have performed and complied in all
material respects with all agreements and conditions contained herein required
to be performed or complied with by them prior to or at the Closing.
(c) Consents, etc. The Company shall have secured all permits, consents
and authorizations that shall be necessary to consummate the transactions
contemplated by this Agreement.
(d) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory to the Company and its counsel.
ARTICLE 6
AFFIRMATIVE COVENANTS
SECTION 6.1. Registration Rights.
(a) Registration Statement. As soon as reasonably practicable after the
date hereof, the Company shall file with the Commission a registration statement
(the "Registration Statement") covering the resale to the public by the
Purchasers of the Shares. The Company shall use its commercially reasonable
efforts to cause the Registration Statement to be declared
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effective by the Commission as soon as practicable, and to remain effective
until the second anniversary of the Closing Date or such earlier time as all of
the Shares covered by the Registration Statement have been sold pursuant
thereto. Thereafter, the Company shall be entitled to withdraw the Registration
Statement and the Purchasers shall have no further right to offer or sell any of
the Shares pursuant to the Registration Statement (or any prospectus relating
thereto). The Shares subject to the Registration Statement shall not be
underwritten unless the Company shall otherwise consent in its sole discretion.
(b) Limitations on Registration Rights. Notwithstanding any other
provision of this Section 6.1, if the Company shall determine in good faith that
(i) continued use by the Purchasers of the Registration Statement would require
premature disclosure in such Registration Statement (or the prospectus relating
thereto) of material, nonpublic information concerning the Company, its business
or prospects or any proposed material transaction involving the Company and (ii)
such premature disclosure would be materially adverse to the Company, its
business or prospects or any such proposed material transaction or would make
the successful consummation by the Company of any such material transaction
significantly less likely, then the Company shall provide written notice thereof
to the Purchasers and the right of the Purchasers to use such Registration
Statement (and the prospectus relating thereto) for purposes of effecting offers
or sales of Shares pursuant thereto shall be suspended for a period (the
"Suspension Period") of not more than 90 days in any 12-month period. During the
Suspension Period, no Purchaser shall offer or sell any Shares pursuant to or in
reliance upon the Registration Statement (or the prospectus relating thereto).
The Company shall not be required to disclose to the Purchasers the reasons for
requiring a suspension of sales under the Registration Statement, and the
Purchasers shall not disclose to any third party the existence of any such
suspension. The Company agrees that, as promptly as practicable after the
consummation, abandonment or public disclosure of the event or transaction that
caused the Company to suspend the use of the Registration Statement (and the
prospectus relating thereto) pursuant to this Section 6.1(b), the Company will
provide the Purchasers with a revised prospectus, if required, and will notify
the Purchasers of their ability to effect offers or sales of Shares pursuant to
or in reliance upon the Registration Statement.
(c) Registration Procedures. In connection with the filing by the
Company of the Registration Statement, the Company shall furnish to each
Stockholder a copy of the prospectus in conformity with the requirements of the
Securities Act. Subject to the provisions of Section 6.1(b), the Company shall
prepare and file with the Commission such amendments and supplements to the
Registration Statement and the prospectus used in connection with such
Registration Statement as may be reasonably necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Shares pursuant to such Registration Statement
until the earlier of (i) such time as all such Shares have been disposed of or
(ii) the second anniversary of the Closing Date. The Company shall furnish to
each Stockholder a copy of any amendment or supplement to such Registration
Statement or prospectus filed with the Commission.
If the Company has delivered a prospectus to the Purchasers and
after having done so the prospectus is amended or supplemented to comply with
the requirements of the Securities Act as described in the immediately preceding
paragraph, the Company shall promptly
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notify the Purchasers and, if requested by the Company, the Purchasers shall
immediately cease making offers or sales of shares under the Registration
Statement and return all prospectuses to the Company. The Company shall promptly
provide the Purchasers with a revised prospectus and, following receipt of the
revised prospectus, the Purchasers shall be free to resume making offers and
sales under the Registration Statement.
The Company shall use its commercially reasonable efforts to
register or qualify the Shares covered by the Registration Statement under the
securities or "blue sky" laws of such states as the Purchasers shall reasonably
request; provided, however, that the Company shall not be required to qualify as
a foreign corporation or execute a general consent to service of process in any
jurisdiction.
The Company shall pay the expenses incurred by it in complying
with its obligations under this Section 6.1, including all registration and
filing fees, exchange listing fees and fees and expenses of the Company's
counsel and accountants, but excluding (i) any brokerage fees, selling
commissions or underwriting discounts incurred by the Purchasers in connection
with sales under the Registration Statement and (ii) the fees and expenses of
any counsel retained by the Purchasers.
(d) Requirements of Purchasers. The Company shall not be required
to include any Shares in the Registration Statement unless the Stockholder
owning such Shares (i) furnishes to the Company in writing such information
regarding such Stockholder and the proposed sale of Shares by such Stockholder
as the Company may reasonably request in connection with the Registration
Statement or as shall be required in connection therewith by the Commission or
any state securities law authorities and (ii) upon the written request of the
Company, confirms in writing its indemnification obligations under Section
6.1(e).
(e) Indemnification.
(i) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each Stockholder and each broker or other person
acting on behalf of such Stockholder against any Damages to which they may
become subject under the Securities Act or otherwise, insofar as such Damages
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in such Registration Statement, including any prospectus
contained therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or state
securities or blue sky laws applicable to the Company and leading to action or
inaction required of the Company in connection with such registration or
qualification under such Securities Act or state securities or blue sky laws;
and will reimburse any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending any such Damage; provided,
however, that (x) the indemnity agreement contained in this Section 6.1(e)(i)
shall not apply to amounts paid in settlement of any such Damage if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld or delayed), nor shall the Company be liable in any
such case for any such Damage to the extent that it arises out of or is based
upon an untrue statement or alleged
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untrue statement or omission made in connection with such Registration
Statement, prospectus, or amendments or supplements thereto, in reliance upon
and in conformity with information furnished for use in connection with such
Registration Statement by any Stockholder and (y) the foregoing indemnity shall
not inure to the benefit of any Stockholder, broker or other person acting on
behalf of such Stockholder, broker or other person asserting any Damage that
purchased, sold, transferred or otherwise disposed of Shares during a Suspension
Period or if a revised prospectus was timely delivered to such Stockholder
pursuant to Section 6.1(c) and a copy of such revised prospectus was not sent or
given by or on behalf of such Stockholder to such Person, if required by law to
have been delivered, and such revised prospectus would have cured the defect
giving rise to such Damage.
(ii) To the fullest extent permitted by law, each Stockholder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed such registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, and all other
Purchasers against any Damages to which they may become subject under the
Securities Act or otherwise, insofar as such Damages arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained in
such Registration Statement, including any prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such registration statement,
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with information furnished by such Stockholder for use in connection
with such Registration Statement; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, or other Stockholder in connection with investigating or defending any
such Damage; provided, however, that the maximum amount of liability of each
Stockholder hereunder shall be limited to the proceeds (net of underwriting
discounts and commissions, if any) actually received by such Stockholder from
the sale of Shares covered by such Registration Statement, and provided further
that the indemnity agreement contained in this Section 6.1(e)(ii) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of those
Stockholder(s) against which the request for indemnity is being made (which
consent shall not be unreasonably withheld or delayed).
Promptly after receipt by an indemnified party under this Section 6.1(e)
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 6.1(e), notify the indemnifying party in writing of the commencement
thereof and the indemnifying party shall have the right to participate in and,
to the extent the indemnifying party desires, jointly with any other
indemnifying party similarly noticed, to assume at its expense the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that, if any indemnified party shall have reasonably concluded that there may be
one or more legal defenses available to such indemnified party that are
different from or additional to those available to the indemnifying party, or
that such claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section 6.1(e), the
indemnifying party shall not have the
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right to assume the defense of such action on behalf of such indemnified party,
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for the fees and expenses of counsel
retained by the indemnified party that are reasonably related to the matters
covered by the indemnity agreement provided in this Section 6.1(e). Subject to
the foregoing, an indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but the
fees and expenses of such counsel shall not be at the expense of the
indemnifying party. The failure to notify an indemnifying party promptly of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6.1(e), but the omission so to notify
the indemnifying party will not relieve it of any liability that the
indemnifying party may have to any indemnified party otherwise other than under
this Section 6.1.
(f) Rule 144. The Company shall use its commercially reasonable efforts
to comply with the requirements of Rule 144(c) under the Securities Act, as such
Rule may be amended from time to time (or any similar rule or regulation
hereafter adopted by the Commission), regarding the availability of current
public information to the extent required to enable each Stockholder to sell
Shares without registration under the Securities Act pursuant to the resale
provisions of Rule 144 (or any similar rule or regulation). Upon a Stockholder's
compliance with the applicable provisions of Rule 144, the Company will take
such actions as may reasonably be required (including, without limitation,
causing legal counsel to issue an appropriate opinion) to cause its transfer
agent to effectuate any transfer of Shares properly requested by such Purchaser,
in accordance with the terms and conditions of Rule 144.
SECTION 6.2. No Manipulation of Stock. Each Purchaser represents and
covenants, severally and not jointly, that it has not taken and, prior to the
Closing Date, will not take any action designed to or that might reasonably be
expected to cause or results in manipulation of the price of the Common Stock.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Termination.
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by the written agreement of the Company and the Purchasers
purchasing a majority of the Shares;
(ii) by the Company if there is a material breach of any
representation or warranty set forth in Article 3 or any covenant or agreement
to be complied with or performed by any Purchaser pursuant to the terms of this
Agreement and such breach persists for 14 days or more after written notice is
given, so long as any such breach is not caused by the action or inaction of the
Company;
(iii) by the Purchasers purchasing a majority of the Shares if
there is a material breach of any representation or warranty set forth in
Article 2 or any covenant or agreement to be
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complied with or performed by the Company pursuant to the terms of this
Agreement and such breach persists for 14 days or more after written notice is
given, so long as any such breach is not caused by the action or inaction of any
Purchaser; or
(iv) by the Company or the Purchasers purchasing a majority of
the Shares if the Closing has not occurred on or prior to July 1, 2002.
(b) In the event of termination of this Agreement, no party
hereto shall have any liability to any other party to this Agreement, except for
any willful breach of, or knowing misrepresentation made in, this Agreement
occurring prior to the formal termination of this Agreement.
SECTION 7.2. Survival of Agreements. All agreements, representations and
warranties contained herein or made in writing by or on behalf of the Company in
connection with the transactions contemplated hereby shall terminate upon the
Closing, provided that the provisions of Article 6 shall survive the Closing for
the respective periods of time set forth in Article 6.
SECTION 7.3. Notices. All notices, requests, consents and other
communications herein shall be in writing and shall be mailed by first-class
certified mail, postage prepaid and return receipt requested, personally
delivered, faxed, or sent by recognized overnight courier service, as follows:
(a) If to the Company:
IMP, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to a Purchaser, to the address set forth below such Purchaser's
name on Exhibit A;
or such other addresses as each of the parties hereto may provide from time to
time in writing to the other parties.
SECTION 7.4. Modifications; Waiver. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or in
writing, except that any
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provision of this Agreement may be amended and the observance of any such
provision may be waived (either generally or in a particular instance and either
retroactively or prospectively) with (but only with) the written consent of the
party to be charged.
SECTION 7.5. Exculpation. Each Purchaser acknowledges that it is not
relying upon any statements or instruments made or issued by any person, firm or
corporation, other than those contained in this Agreement in making its decision
to invest in the Company.
SECTION 7.6. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
hereby, and supersedes all negotiations, agreements, representations, warranties
and commitments, whether in writing or oral, prior to or contemporaneous with
the date hereof.
SECTION 7.7. Successors and Assigns. Except as otherwise expressly
provided in this Agreement, all of the terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto.
SECTION 7.8. Enforcement.
(a) Remedies at Law or in Equity. If the Company shall default in any of
its obligations under this Agreement or if any representation or warranty made
by or on behalf of the Company in this Agreement shall be untrue or misleading
in any material respect as of the date of this Agreement or as of the Closing,
the Purchasers may proceed to protect and enforce their rights, including by way
of suit in equity or action at law. In the event the Purchasers bring such an
action against the Company, the prevailing party in such dispute shall be
entitled to recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect to this
Agreement, including, without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
(b) Remedies Cumulative; Waiver. No remedy referred to herein is
intended to be exclusive, but each shall be cumulative and in addition to any
other remedy referred to above or otherwise available to a party at law or in
equity. No express or implied waiver by the Purchasers of any default shall be a
waiver of any future or subsequent default. The failure or delay of any party in
exercising any rights granted it hereunder shall not constitute a waiver of any
such right and any single or partial exercise of any particular right by a party
shall not exhaust the same or constitute a waiver of any other right provided
herein.
SECTION 7.9. Execution and Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and all such counterparts together shall constitute
one instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it and by the Company.
SECTION 7.10. Governing Law and Severability; Waiver of Jury Trial.
(a) This Agreement shall be governed by the internal laws of the state
of California, without regard to principles of conflicts of law.
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(b) In the event any provision of this agreement or the application of
any such provision to any party shall be held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this agreement
shall remain in full force and effect.
(c) Each signatory to this Agreement hereby waives its respective right
to a jury trial of any permitted claim or cause of action arising out of this
Agreement, any of the transactions contemplated hereby, or any dealings between
any of the signatories hereto relating to the subject matter of this Agreement
or any of the transactions contemplated hereby. The scope of this waiver is
intended to be all encompassing of any and all disputes that may be filed in any
court and that relate the subject matter of this Agreement or any of the
transactions contemplated hereby, including, without limitation, contract
claims, tort claims and all other common law and statutory claims. This waiver
is irrevocable, meaning that it may not be modified either orally or in writing,
and this waiver shall apply to any subsequent amendments, supplements or other
modifications to this Agreement, any of the transactions contemplated hereby or
to any other document or agreement relating to the transactions contemplated
hereby.
SECTION 7.11. Headings. The descriptive headings of the Articles and
Sections hereof are inserted for convenience only and do not constitute a part
of this Agreement.
SECTION 7.12. Confidentiality. Each Purchaser agrees that it will keep
confidential and will not disclose, or divulge any confidential, proprietary,
secret or non-public information which such Purchaser may obtain from the
Company and not use such information other than for the benefit of the Company
or in furtherance of such Purchaser's rights as a stockholder of the Company,
provided that, no such information shall be deemed to be non-public if it (i) is
or becomes generally available to the public other than as a result of a
disclosure by any Purchaser or its respective agents, representatives or
employees; (ii) is or becomes available to any Purchaser on a non-confidential
basis from a source (other than the Company or one of its officers, directors,
agents, representatives or employees) that is not prohibited from disclosing
such information by a legal, contractual or fiduciary obligation; or (iii) was
known to any Purchaser on a non-confidential basis prior to its disclosure to it
by the Company and, provided further that any other term of this Agreement to
the contrary notwithstanding, the Company shall not be obligated to disclose any
information, the disclosure of which it believes in good faith would be
detrimental to the Company or its stockholders.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement by their duly authorized officers as of the date first above written.
IMP, INC.
By:
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board of Directors
PURCHASERS
By:
--------------------------------------
Name:
Title:
EXHIBIT A
NAME AND ADDRESS VALUE OF GOODS PRICE PER NUMBER OF SHARES
AND/OR SERVICES SHARE PURCHASED
PROVIDED
▇▇▇▇▇ Semiconductor $25,751.32 $0.73620 34,979.00
▇▇▇▇ ▇. ▇▇▇ $135,000.00 $0.73620 183,375.00
Epic Semiconductor Inc. $39,000.00 $0.73620 52,975.00
FMG Enterprises, Inc. $16,969.87 $0.73620 23,051.00
Golden Altos Corporation $3,471.00 $0.73620 4,715.00
Art ▇▇▇▇▇▇▇▇▇▇ $2,868.00 $0.73620 3,896.00
▇▇▇▇▇ Engineering Corporation $11,821.00 $0.73620 16,057.00
High Soft $6,569.11 $0.73620 8,923.00
InSync Information Systems $60,000.00 $0.73620 81,500.00
Lemelson Medical, Education &
Research Foundation Ltd. $50,000.00 $0.73620 67,917.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $12,557.49 $0.73620 17,058.00
Simco Electronics $3,427.96 $0.73620 4,657.00
TOTAL $367,435.75 499,103.00