Exhibit 99.3
IMP, INC.
WARRANT AGREEMENT
SEPTEMBER 28, 2001
WARRANT AGREEMENT
Warrant Agreement, dated as of September 28, 2001 (the "Agreement"), by
and between IMP, Inc., a Delaware corporation (the "Company"), and Teamasia
Semiconductors (India) Limited, a company with limited liability organized under
the laws of the Republic of India ("TSIL").
RECITALS
A. The Company and ▇▇▇▇▇ ▇▇▇ LLC, a Delaware limited liability
company ("▇▇▇▇▇ ▇▇▇ LLC"), are parties to a Memorandum of
Understanding Relating to Common Stock Issuance and Related
Transactions dated as of May 10, 2001 (the "Investment MOU").
B. The Company, TSIL and Teamasia Mauritius are parties to a
Memorandum of Understanding Relating to Amendment of Convertible
Debentures and Support of Investment Transactions dated as of
May 10, 2001 (the "Amendment MOU").
C. The Company, ▇▇▇▇▇ ▇▇▇ LLC and the other persons listed on the
signatures pages thereto (collectively, together with ▇▇▇▇▇ ▇▇▇
LLC, the "Purchasers") are parties to a Stock Purchase
Agreement, dated as of the date hereof (the "Stock Purchase
Agreement"), pursuant to which, among other things, the Company
will issue and sell to the Purchasers, and the Purchasers will
purchase from the Company, shares of common stock, par value
$0.01 per share (the "Common Stock"), of the Company, in
accordance with the terms and subject to the conditions set
forth therein.
D. In connection with the transactions contemplated by the
Investment MOU and the Amendment MOU, the Company proposes to
issue to TSIL a warrant to purchase shares of Common Stock in
accordance with the terms and subject to the conditions set
forth in this Agreement.
E. Upon the close of business in Delaware on September 26, 2001,
the Company effected a 1-for-5 reverse stock split of the Common
Stock.
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
1. Warrant. On the Closing Date (as defined in the Stock Purchase
Agreement), the Company shall issue to TSIL a warrant to purchase shares of
Common Stock in the form attached hereto as Exhibit A (the "Warrant"). The
Warrant shall be exercisable for an aggregate of 319,800 shares of Common Stock
and have such other terms and conditions as described in the Warrant.
2. Representations and Warranties of the Company. In connection
with the transactions provided for herein, the Company hereby represents and
warrants to TSIL that:
2.1 Organization, Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as now conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect on its
business or properties.
2.2 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of the Company hereunder and the authorization, issuance (or
reservation for issuance) and delivery of the Warrant and the shares of Common
Stock issuable upon exercise of the Warrant (the "Warrant Shares") has been
taken. This Agreement and the Warrant issued hereunder constitute the Company's
valid and legally binding obligation, enforceable in accordance with their
respective 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.
2.3 Valid Issuance of Common Stock. The Warrant Shares,
when issued, sold and delivered in accordance with the terms of the Warrant for
the consideration expressed therein, will be duly and validly issued, fully paid
and nonassessable and, assuming the accuracy of the representations and
warranties of TSIL in this Agreement remain true and correct on the date of
exercise, will not require registration under applicable federal and state
securities laws.
2.4 Compliance with Other Instruments. The Company is not
in violation or default in any material respect of any provision of its
Certificate of Incorporation or Bylaws, as amended, or in any material respect
of any judgment, order, writ, decree or material contract to which it is a party
or by which it is bound, or, to its knowledge, of any provision of any federal
or state statute, rule or regulation applicable to the Company, except as
otherwise discussed among the Company's directors at meetings of the Company's
Board of Directors held on April 25, 2001, May 7-10, 2001, May 31, 2001, June
12, 2001, June 15, 2001, June 21, 2001, July 23, 2001 and September 25, 2001.
The execution, delivery and performance of this Agreement and the Warrant, and
the consummation of the transactions contemplated hereby or thereby will not
result in any such violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a default under any
such judgment, order, writ, decree or material contract or an event that results
in the creation of any material lien, charge or encumbrance upon any assets of
the Company or the suspension, revocation, impairment, forfeiture or nonrenewal
of any material permit, license, authorization or approval applicable to the
Company, its business or operations or any of its assets or properties.
3. Representations and Warranties of TSIL. In connection with the
transactions provided for herein, TSIL hereby represents and warrants to the
Company that:
3.1 Authorization. This Agreement constitutes TSIL's valid
and legally binding obligation, enforceable in accordance with its terms, except
as may be limited by
2
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors rights generally or by general equitable
principles.
3.2 Purchase Entirely for Own Account. TSIL acknowledges
that this Agreement is made with TSIL in reliance upon TSIL's representation to
the Company that the Warrant and the Warrant Shares (collectively, the
"Securities") will be acquired for investment for TSIL's own account, not as a
nominee or agent and not with a view to the resale or distribution of any part
thereof, and that TSIL has no present intention of selling, granting any
participation in or otherwise distributing the same. By executing this
Agreement, TSIL further represents that TSIL does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to the
Securities. TSIL represents that it has full power and authority to enter into
this Agreement.
3.3 Disclosure of Information. TSIL acknowledges that it
has received all the information it considers necessary or appropriate for
deciding whether to acquire the Securities. TSIL further represents that it has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Securities.
3.4 Investment Experience. TSIL is an investor in
securities of thinly capitalized and financially distressed companies and
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Securities. TSIL has not been organized solely for the purpose of
acquiring the Securities.
3.5 Accredited Investor. TSIL is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and Exchange
Commission (the "SEC"), as presently in effect.
3.6 Restricted Securities. TSIL understands that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act of 1933, as amended (the "Securities Act"), only in certain
limited circumstances. In this connection, TSIL represents that it is familiar
with Rule 144 under the Securities Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act.
3.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, TSIL further agrees not to make
any disposition of all or any portion of the Securities unless:
(a) there is then in effect a registration
statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(b) (i) TSIL shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances
3
surrounding the proposed disposition and (ii) if reasonably requested by the
Company, TSIL shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such Securities under the Securities Act. It is agreed that the
Company will not require opinions of counsel for transactions made pursuant to
Rule 144 under the Securities Act except in extraordinary circumstances.
3.8 Legends. It is understood that the Securities may bear
the following legend:
"These securities have not been registered under the Securities
Act of 1933. They may not be sold, offered for sale, pledged, hypothecated or
otherwise transferred except pursuant to an effective registration statement
under the Securities Act of 1933 or an opinion of counsel satisfactory to the
Company that registration is not required under such Act or unless sold pursuant
to Rule 144 under such Act."
4. Miscellaneous.
4.1 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
4.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents, made and to be performed entirely within the State
of California.
4.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal delivery to the party to be notified
or upon delivery by confirmed facsimile transmission or nationally recognized
overnight courier service or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties and, in the case of any notice given to
TSIL, with a copy to HSBC Private Equity (Asia) Limited, ▇▇▇▇▇ ▇▇, ▇ ▇▇▇▇▇'▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
4
4.6 Finder's Fee. Each party represents that it neither is
nor will be obligated for any finder's fee or commission in connection with this
transaction. TSIL agrees to indemnify and to hold harmless the Company from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which TSIL or any of its officers, partners, employees or
representatives is responsible. The Company agrees to indemnify and hold
harmless TSIL from any liability for any commission or compensation in the
nature of a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
4.7 Attorney's Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
4.8 Entire Agreement: Amendments and Waivers. This
Agreement and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the Company and TSIL.
4.9 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.10 The parties acknowledge that ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ has
solely represented the Company in connection with the negotiation, preparation
and execution of this Agreement and the transactions described herein.
(Signature Page Follows)
5
IN WITNESS WHEREOF, the parties have executed this Warrant
Agreement by their duly authorized officers as of the date first above written.
IMP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TEAMASIA SEMICONDUCTORS (INDIA) LIMITED
By: /s/
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Address: 3-4-526/15 Lingampally
Hyderabad 500 027, India
EXHIBIT A
FORM OF WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
June 28, 2004
IMP, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to Teamasia Semiconductors (India)
Limited, a company with limited liability organized under the laws of the
Republic of India ( "TSIL"), by IMP, Inc., a Delaware corporation (the
"Company"), pursuant to the terms of that certain Warrant Agreement, dated as of
September 28, 2001 (the "Warrant Agreement").
1. Purchase of Shares. Subject to compliance with all applicable
securities laws and upon the terms and subject to the conditions hereinafter set
forth and set forth in the Warrant Agreement, TSIL is entitled, upon surrender
of this Warrant at the principal office of the Company (or at such other place
as the Company shall notify TSIL hereof in writing), to purchase from the
Company up to 319,800 fully paid and nonassessable shares (the "Shares") of
common stock, par value $0.01 per share (the "Common Stock"), of the Company.
2. Exercise Price. The purchase price for the Shares shall be
$1.10 per Share. Such price is payable as provided in Sections 4 and 5 and shall
be subject to adjustment pursuant to Section 8 hereof (such price, as adjusted
from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. This Warrant shall first be exercisable on
September 28, 2001; provided, however, that this Warrant shall not be
exercisable, in whole or in part, at any time after 5:00 p.m., California time,
on June 28, 2004.
4. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, TSIL may exercise, in whole or
in part, the purchase rights evidenced hereby. Such exercise shall be effected
by:
A-1
4.1 the surrender of the Warrant, together with a duly
executed copy of the form of Notice of Election attached hereto, to the
Secretary of the Company at its principal offices; and
4.2 the payment in immediately available funds to the
Company of an amount equal to the aggregate Exercise Price for the number of
Shares being purchased.
5. Net Exercise. In lieu of exercising this Warrant for cash
pursuant to Section 4, TSIL may elect to receive, without the payment by TSIL of
any additional consideration, shares of Common Stock by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to TSIL a number of shares of
Common Stock computed using the following formula:
Y (A - B)
---------
X = A
where:
X = the number of shares of Common Stock to be issued to TSIL
pursuant to this net exercise;
Y = the number of Shares in respect of which the net issue
election is made;
A = the fair market value of one share of the Common Stock at
the time the net issue election is made; and
B = the Exercise Price (as adjusted to the date of the net
issuance).
For purposes of this Section 5, the fair market value of one share of Common
Stock as of a particular date shall be determined as follows: (i) if traded on a
securities exchange or through the Nasdaq National Market, the value shall be
deemed to be the average of the closing prices of the Common Stock on such
exchange over the ten (10) day period ending on the trading day immediately
prior to the net exercise election; (ii) if traded on the Nasdaq Small Cap
Market, the Nasdaq Bulletin Board or any other over-the-counter market, the
value shall be deemed to be the average of the closing bid prices over the ten
(10) day period ending on the trading day immediately prior to the net exercise;
and (iii) if there is no active public market, the value shall be the fair
market value thereof, as determined in good faith by the Board of Directors of
the Company.
6. Certificates for Shares. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number of
Shares so purchased shall be issued promptly thereafter (with appropriate
restrictive legends, if applicable).
7. Issuance of Shares. The Company covenants that the Shares,
when issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof.
A-2
8. Adjustment of Exercise Price and Number of Shares. The number
of and kind of securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
8.1 Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or issue
additional shares of its Common Stock as a dividend or stock split with respect
to its Common Stock, the number of Shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the Exercise Price
per share, but the aggregate Exercise Price payable for the total number of
Shares purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8.1 shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
8.2 Reclassification, Reorganization and Consolidation. In
case of any reclassification, capital reorganization or change in the Common
Stock of the Company (other than as a result of a subdivision, combination,
stock dividend or stock split provided for in Section 8.1 above), then, as a
condition of such reclassification, reorganization or change, lawful provision
shall be made, and duly executed documents evidencing the same from the Company
or its successor shall be delivered to TSIL, so that TSIL shall have the right
at any time prior to the expiration of this Warrant to purchase, at a total
price equal to that payable upon the exercise of this Warrant, the kind and
amount of shares of stock and other securities and property receivable in
connection with such reclassification, reorganization or change by TSIL of the
same number of shares of Common Stock as were purchasable by TSIL immediately
prior to such reclassification, reorganization or change. In any such case
appropriate provisions shall be made with respect to the rights and interest of
TSIL so that the provisions hereof shall thereafter be applicable with respect
to any shares of stock or other securities and property deliverable upon
exercise hereof, and appropriate adjustments shall be made to the Exercise Price
per share payable hereunder, provided the aggregate Exercise Price shall remain
the same.
8.3 Notice of Adjustment. When any adjustment is required
to be made in the number or kind of shares purchasable upon exercise of the
Warrant, or in the Exercise Price, the Company shall promptly notify TSIL of
such event and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of this Warrant.
9. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
10. No Stockholder Rights. Prior to exercise of this Warrant,
TSIL shall not be entitled to any rights of a stockholder with respect to the
Shares, including, without limitation, the right to vote such Shares, receive
dividends or other distributions thereon and TSIL shall not
A-3
be entitled to any notice or other communication provided to stockholders
concerning the business or affairs of the Company.
11. Transfers of Warrant. Subject to compliance with applicable
federal and state securities laws, this Warrant and all rights hereunder are
transferable in whole or in part by TSIL to any person or entity upon written
notice to the Company, provided that the transferee agrees in writing with the
Company to be bound by all of the same restrictions applying to the Warrant and
the Shares as are applicable to TSIL immediately prior to the transfer. The
transfer shall be recorded on the books of the Company upon the surrender of
this Warrant, properly endorsed, to the Company at its principal offices and the
payment to the Company of all transfer taxes and other governmental charges
imposed on such transfer. In the event of a partial transfer, the Company shall
issue to TSIL an appropriate new warrant.
12. Successors and Assigns. The terms and provisions of this
Warrant and the Warrant Agreement shall inure to the benefit of, and be binding
upon, the Company and TSIL and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be
amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and TSIL.
14. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by confirmed facsimile transmission or nationally recognized overnight
courier service or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties).
15. Attorneys' Fees. If any action of law or equity is necessary
to enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
16. Captions. The section and subsection headings of this Warrant
are inserted for convenience only and shall not constitute a part of this
Warrant in construing or interpreting any provision hereof.
17. Governing Law. This Warrant shall be governed by the laws of
the State of California as applied to agreements among California residents made
and to be performed entirely within the State of California.
18. Legal Counsel. The parties acknowledge that ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ has
solely represented the Company in connection with the negotiation, preparation
and execution of this Warrant and the transactions described herein.
(Signature Page Follows)
A-4
IN WITNESS WHEREOF, IMP, Inc. caused this Warrant to be executed
by an officer thereunto duly authorized.
IMP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
A-5
NOTICE OF EXERCISE
To: IMP, INC.
The undersigned hereby elects to:
________ (a) purchase _________________ shares of common stock of IMP,
Inc., pursuant to the terms of the attached Warrant and
payment of the exercise price required under such Warrant
accompanies this notice;
OR
________ (b) exercise the attached Warrant for [all of the shares]
[________ of the shares] purchasable under the Warrant
pursuant to the net exercise provisions of Section 5 of
such Warrant.
The undersigned hereby confirms the representations and
warranties of the undersigned contained in Article 3 of the Warrant Agreement,
dated as of September 28, 2001 by and between IMP, Inc. and the undersigned.
TEAMASIA SEMICONDUCTORS
(INDIA) LIMITED:
By:_________________________________
Name:
Address:
Date: __________, 200___
Name in which shares should be registered: