EXHIBIT 10.42
COMMON STOCK AND WARRANTS PURCHASE AGREEMENT
Between
IMPCO Technologies, Inc.
and
the Investors Signatory Hereto
COMMON STOCK AND WARRANTS PURCHASE AGREEMENT dated as of January 11, 2002
(the "Agreement"), between the Investors signatory hereto (each an "Investor"
and together the "Investors"), and IMPCO Technologies, Inc., a corporation
organized and existing under the laws of the State of Delaware (the "Company").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Investors,
and the Investors shall purchase in the aggregate, up to (i) 2,000,000 shares of
Common Stock (as defined below) and (ii) Warrants (as defined below) to purchase
up to 200,000 shares of the Common Stock (as defined below) with an exercise
price of $13.25 per share.
WHEREAS, such investments will be made in reliance upon the provisions of
Section 4(2) ("Section 4(2)") and/or 4(6) of the United States Securities Act of
1933, as amended (the "Securities Act") and/or Regulation D ("Regulation D") and
the other rules and regulations promulgated under the Securities Act, and/or
upon such other exemption from the registration requirements of the Securities
Act as may be available with respect to any or all of the investments in
securities to be made hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
Section 1.1. "Capital Shares" shall mean the Common Stock and any shares of any
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other class of common stock whether now or hereafter authorized, having the
right to participate in the distribution of earnings and assets of the Company.
Section 1.2. "Capital Shares Equivalents" shall mean any securities, rights, or
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obligations that are convertible into or exchangeable for or give any right to
subscribe for any Capital Shares of the Company or any Warrants, options or
other rights to subscribe for or purchase Capital Shares or any such convertible
or exchangeable securities.
Section 1.3. "Closing" shall mean the closing of the purchase and sale of the
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Common Stock and Warrants pursuant to Section 2.1.
Section 1.4. "Closing Date" shall mean the date on which all conditions to the
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Closing have been satisfied (as defined in Section 2.1 (b) hereto) and the
Closing shall have occurred.
Section 1.5. "Common Stock" shall mean the Company's common stock, $.001 par
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value per share.
Section 1.6. "Damages" shall mean any loss, claim, damage, judgment, penalty,
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deficiency, liability, costs and expenses (including, without limitation,
reasonable attorney's fees and disbursements and reasonable costs and expenses
of expert witnesses and investigation; but excluding indirect or consequential
damages).
Section 1.7. "Effective Date" shall mean the date on which the SEC first
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declares effective a Registration Statement registering the resale of the
Registrable Securities as set forth in the Registration Rights Agreement.
Section 1.8. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations promulgated thereunder.
Section 1.9. "Knowledge" of the Company, when modifying a representation or
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warranty (whether or not the word "knowledge" is capitalized), means the Company
has no actual knowledge that such representation or warranty is not true and
correct to the extent provided therein and that (i) the Company has made
appropriate inquiries of its executive officers and (ii) nothing has come to the
Company's attention in the course of such inquiries which would cause the
Company, in the exercise of due care, to believe that such representation or
warranty is not true and correct to the extent provided therein; provided that
the Company shall be deemed to have satisfied the foregoing requirements by
making appropriate inquiries of its executive officers.
Section 1.10. "Legend" shall mean the legend set forth in Section 8.1.
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Section 1.11. "Material Adverse Effect" shall mean any effect on the business,
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operations, properties, or financial condition of the Company that is material
and adverse to the Company and its subsidiaries and affiliates, taken as a
whole, and/or any condition, circumstance, or situation that would prohibit or
otherwise interfere with the ability of the Company to enter into and perform
any of its obligations under this Agreement, the Registration Rights Agreement,
or the Warrants in any material respect.
Section 1.12. "Outstanding" when used with reference to shares of Common Stock
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or Capital Shares, shall mean, at any date as of which the number of such shares
is to be determined, all issued and outstanding shares, and shall include all
such shares issuable in respect of outstanding scrip or any certificates
representing fractional interests in such shares; provided, however, that
"Outstanding" shall not mean any such shares then directly or indirectly owned
or held by or for the account of the Company.
Section 1.13. "Person" shall mean an individual, a corporation, a partnership, a
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limited liability company, an association, a trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
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Section 1.14. "Principal Market" shall mean the American Stock Exchange, the New
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York Stock Exchange, the NASDAQ National Market, or the NASDAQ Small-Cap Market,
whichever is at the time the principal trading exchange or market for the Common
Stock, based upon share volume.
Section 1.15. "Purchase Price" shall mean eleven dollars and twenty-five cents
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($11.25) per unit consisting of one share of Common Stock and a Warrant to
purchase 0.10 shares of Common Stock.
Section 1.16. "Registrable Securities" shall mean the Common Stock and the
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Warrant Shares until (i) the Registration Statement has been declared effective
by the SEC, and all shares of Common Stock and Warrant Shares have been disposed
of pursuant to the Registration Statement, (ii) all shares of Common Stock and
Warrant Shares have been sold under circumstances under which all of the
applicable conditions of Rule 144 (or any similar provision then in force) under
the Securities Act ("Rule 144") are met, (iii) all shares of Common Stock and
Warrant Shares have been otherwise transferred to holders who may trade such
shares without restriction under the Securities Act, and the Company has
delivered a new certificate or other evidence of ownership for such securities
not bearing a restrictive legend or (iv) such time as, in the opinion of counsel
to the Company, all shares of Common Stock and Warrant Shares may be sold at any
time, without volume or manner of sale limitations pursuant to Rule 144(k) (or
any similar provision then in effect) under the Securities Act.
Section 1.17. "Registration Rights Agreement" shall mean the agreement regarding
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the filing of the Registration Statement for the resale of the Registrable
Securities, entered into between the Company and the Investors as of the Closing
Date in the form annexed hereto as Exhibit A.
Section 1.18. "Registration Statement" shall mean a registration statement on
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Form S-3 (if use of such form is then available to the Company pursuant to the
rules of the SEC and, if not, on such other form promulgated by the SEC for
which the Company then qualifies and which counsel for the Company shall deem
appropriate, and which form shall be available for the resale by the Investors
of the Registrable Securities to be registered thereunder in accordance with the
provisions of this Agreement, the Registration Rights Agreement and in
accordance with the intended method of distribution of such securities), for the
registration of the resale by the Investors of the Registrable Securities under
the Securities Act.
Section 1.19. "Regulation D" shall have the meaning set forth in the recitals of
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this Agreement.
Section 1.20. "SEC" shall mean the Securities and Exchange Commission.
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Section 1.21. "Section 4(2)" and "Section 4(6)" shall have the meanings set
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forth in the recitals of this Agreement.
Section 1.22. "Securities Act" shall have the meaning set forth in the recitals
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of this Agreement.
Section 1.23. "SEC Documents" shall mean the Company's Annual Report on Form
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10-K for the fiscal year ended April 30, 2001 and each report, proxy statement
or registration statement
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filed by the Company with the SEC pursuant to the Exchange Act or the Securities
Act since the filing of such Annual Report through the date hereof, including
any amendments thereto.
Section 1.24. "Shares" shall mean the shares of Common Stock being purchased
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pursuant to this Agreement.
Section 1.25. "Trading Day" shall mean any day during which the Principal
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Market shall be open for business.
Section 1.26. "Warrants" shall mean the Warrants substantially in the form of
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Exhibit B to be issued to the Investors hereunder.
Section 1.27. "Warrant Shares" shall mean all shares of Common Stock or other
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securities issued or issuable pursuant to exercise of the Warrants.
ARTICLE II
Purchase and Sale of Common Stock and Warrants
Section 2.1. Investment.
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(a) Upon the terms and subject to the conditions set forth herein, the
Company agrees to sell, and the Investors, severally and not jointly, agree to
purchase units consisting of separately transferable shares of Common Stock
together with the Warrants, on the basis of one share of Common Stock plus a
Warrant to purchase 0.10 shares of Common Stock (for each Investor, rounded down
to the nearest whole number of shares of Common Stock), at the Purchase Price on
the Closing Date as follows:
(i) Upon execution and delivery of this Agreement and the
Registration Rights Agreement by each Investor and the
Company, the Investors shall deliver to the Company
immediately available funds in their proportionate amount of
the Purchase Price, net of seven percent (7%) of the
proportionate amount of such Purchase Price, which the
Investors shall pay directly to Ladenburg ▇▇▇▇▇▇▇▇ & Co.
Inc. as Placement Agent for the Company, as set forth on the
signature pages hereto, by wire transfer to the Company
account set forth on Appendix A hereto.
(ii) Upon receipt of each wire transfer and this Agreement and
the Registration Rights Agreement duly executed by an
Investor, the Company shall deliver the Common Stock
certificates and the Warrants to the applicable Investor at
the address indicated on the signature pages hereto.
(b) The Closing is subject to the satisfaction or waiver by the party
to be benefited thereby of the following conditions:
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(i) acceptance and execution by the Company and by each
Investor, severally, of this Agreement and the
Registration Rights Agreement;
(ii) payment by each Investor of immediately available funds in
the amount of the Purchase Price of the Common Stock and
the Warrants;
(iii) all representations and warranties of the Investors
contained herein shall remain true and correct in all
material respects as of the Closing Date (as a condition
to the Company's obligations);
(iv) all representations and warranties of the Company
contained herein shall remain true and correct in all
material respects as of the Closing Date, except to the
extent that any such representation or warranty expressly
relates to another date (in which case, shall be true and
correct as of such other specified date) (as a condition
to the Investors' obligations);
(v) the Company shall have obtained all permits and
qualifications required by any state for the offer and
sale of the Common Stock and Warrants, or shall have the
availability of exemptions therefrom;
(vi) the sale and issuance of the Common Stock and the Warrants
hereunder, and the proposed issuance by the Company to the
Investors of the Common Stock underlying the Common Stock
and the Warrants upon the exercise thereof shall be
legally permitted by all laws and regulations to which the
Investors and the Company are subject and there shall be
no ruling, judgment or writ of any court prohibiting the
transactions contemplated by this Agreement;
(vii) delivery of the original fully executed Common Stock
certificates and Warrants, and Registration Rights
Agreement to the Investors;
(viii) delivery to the Investors of an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel to the Company, in the form of
Exhibit C hereto.
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Section 2.2. Limitation on Shares. In no event shall the aggregate of the
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number of Shares sold hereunder exceed 19.99% of the outstanding shares of
Common Stock of the Company as of the date of this Agreement (immediately prior
to the issuance of the Shares).
ARTICLE III
Representations and Warranties of Investors
Each Investor, severally and not jointly, represents and warrants to and agrees
with the Company that:
Section 3.1. Intent. The Investor is entering into this Agreement for its own
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account and not with a view to or for sale in connection with any distribution
of the Shares, the Warrants or any
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Warrant Shares. The Investor has no present plan, intention or arrangement
(whether or not legally binding) at any time to sell the Shares, the Warrants,
or any Warrant Shares to or through any person or entity. The Investor
understands that the Shares, the Warrants and the Warrant Shares have not been
registered under the Securities Act or any state securities laws in reliance on
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of the Investor's investment intent as expressed herein.
Investor agrees that it will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to purchase, transfer or
otherwise acquire or take a pledge of) any of the Shares, the Warrants or the
Warrant Shares except in compliance with the Securities Act, applicable state
securities laws and the respective rules and regulations thereunder.
Notwithstanding the foregoing, by making the representations herein the Investor
does not agree to hold such securities for any minimum or other specific term
and reserves the right to dispose of the Shares, the Warrants and the Warrant
Shares at any time in accordance with federal and state securities laws and the
terms of this Agreement applicable to such disposition.
Section 3.2. Sophisticated Investor. The Investor is a sophisticated investor
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(as described in Rule 506(b)(2)(ii) of Regulation D) and an "accredited
investor" (as defined in Rule 501 of Regulation D), and Investor has such
experience in business and financial matters that it has the capacity to protect
its own interests in connection with this transaction and is capable of
evaluating the merits and risks of an investment in the Common Stock and the
Warrants. The Investor acknowledges that an investment in the Common Stock and
the Warrants is speculative and involves a high degree of risk.
Section 3.3. Authority. This Agreement and the Registration Rights Agreement
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has been duly authorized and validly executed and delivered by the Investor and
is a valid and binding agreement of the Investor enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency, or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general application.
Section 3.4. Not an Affiliate. The Investor is not an officer, director or
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"affiliate" (as that term is defined in Rule 405 of the Securities Act) of the
Company.
Section 3.5. Absence of Conflicts. The execution and delivery of this
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Agreement and the Registration Rights Agreement, and the consummation of the
transactions contemplated hereby and thereby, and compliance with the
requirements hereof and thereof by the Investor, will not violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
Investor or (a) violate any provision of any indenture, instrument or agreement
to which Investor is a party or is subject, or by which Investor or any of its
assets is bound; (b) conflict with or constitute a material default thereunder;
(c) result in the creation or imposition of any lien pursuant to the terms of
any such indenture, instrument or agreement, or constitute a breach of any
fiduciary duty owed by Investor to any third party; or (d) require the approval
of any third-party (which has not been obtained) pursuant to any material
contract, agreement, instrument, relationship or legal obligation to which
Investor is subject or to which any of its assets, operations or management may
be subject.
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Section 3.6. Disclosure; Access to Information. The Investor represents that it
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believes that it has received all the information it considers necessary or
appropriate for deciding whether to purchase the Shares. The Investor has
received all documents, records, books and other publicly available information
pertaining to Investor's investment in the Company that have been requested by
the Investor. The Company is subject to the periodic reporting requirements of
the Exchange Act, and the Investor has reviewed copies of all SEC Documents
deemed relevant by Investor. The Investor 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 Shares and the business, properties,
prospects and financial condition of the Company.
Section 3.7. Manner of Sale. At no time was Investor presented with or
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solicited by or through any leaflet, public promotional meeting, or television
advertisement or, to the Investor's knowledge, with any other form of
communication which appeared to Investor to constitute general solicitation or
advertising.
ARTICLE IV
Representations and Warranties of the Company
The Company represents and warrants to the Investors that, except as set forth
on the Disclosure Schedule prepared by the Company and attached hereto and
except as otherwise set forth in the SEC Documents:
Section 4.1. Organization of the Company. The Company is a corporation duly
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incorporated and existing in good standing under the laws of the State of
Delaware and has all requisite corporate authority to own its properties and to
carry on its business as now being conducted. Other than the subsidiaries listed
on Schedule 4.1, the Company does not have any subsidiaries and does not own
more than fifty percent (50%) of or control any other business entity. The
Company is duly qualified and is in good standing as a foreign corporation to do
business in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, other than those in
which the failure so to qualify would not have a Material Adverse Effect.
Section 4.2. Authority. (i) The Company has the requisite corporate power and
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corporate authority to enter into and perform its obligations under this
Agreement, the Registration Rights Agreement and the Warrants and to issue the
Common Stock, the Warrants and the Warrant Shares pursuant to their respective
terms, (ii) the execution, issuance and delivery of this Agreement, the
Registration Rights Agreement, the Common Stock certificates and the Warrants by
the Company and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action and no further
consent or authorization of the Company or its Board of Directors or
stockholders is required, and (iii) this Agreement, the Registration Rights
Agreement, the Common Stock certificates and the Warrants have been duly
executed and delivered by the Company and at the Closing shall constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by
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other equitable principles of general application. The Company has duly and
validly authorized and reserved for issuance shares of Common Stock sufficient
in number for the exercise of the Warrants.
Section 4.3. Capitalization. As of the date hereof, the authorized capital
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stock of the Company consists of: (a) 100,000,000 shares of Common Stock, par
value $0.001 per share (the "Common Stock"), of which 10,517,444 shares are
outstanding; (b) 500,000 shares of Preferred Stock, par value $0.001 per share,
of which no shares are outstanding; (c) outstanding options to purchase an
aggregate of 1,350,872 shares of Common Stock; and (d) 197,502 shares of Common
Stock available for issuance, directly or through option grants, under the
Company's existing stock incentive plans. Except as set forth above, and except
for the Shares, the Warrants and the Warrant Shares, there are no outstanding
Capital Shares Equivalents nor any agreements or understandings pursuant to
which any Capital Shares Equivalents may become outstanding. The Company is not
a party to any agreement granting registration or anti-dilution rights to any
person (other than the Investors herein) with respect to any of its equity or
debt securities. All of the outstanding shares of Common Stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable.
Section 4.4. Common Stock; S-3 Eligible. The Company has registered its Common
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Stock pursuant to Section 12(b) or (g) of the Exchange Act and is in full
compliance with all reporting requirements of the Exchange Act, and the Company
is in compliance with all requirements for the continued listing or quotation of
its Common Stock, and such Common Stock is currently listed or quoted on, the
Principal Market. As of the date hereof, the Principal Market is the Nasdaq
National Market, and the Company has not received any notice regarding, and to
its knowledge there is no threat, of the termination or discontinuance of the
eligibility of the Common Stock for such listing. The Company is eligible to
register the Shares and the Warrant Shares for resale by the Investors on Form
S-3.
Section 4.5. SEC Documents. The Company has not provided to the Investors any
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information that, according to applicable law, rule or regulation, should have
been disclosed publicly prior to the date hereof by the Company, but which has
not been so disclosed. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and rules and regulations of the SECpromulgated
thereunder and the SEC Documents did not 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. The financial statements of the
Company included in the SEC Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC or other applicable rules and regulations with respect thereto at the
time of such inclusion. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of operations
and cash flows for the periods then ended (subject, in the case of unaudited
interim statements, to normal year-end audit adjustments). Neither the Company
nor any of its subsidiaries has any material
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indebtedness, obligations or liabilities of any kind (whether accrued, absolute,
contingent or otherwise, and whether due or to become due) that would have been
required to be reflected in, reserved against or otherwise described in the
financial statements or in the notes thereto in accordance with GAAP, which was
not fully reflected in, reserved against or otherwise described in the financial
statements or the notes thereto included in the SEC Documents or was not
incurred in the ordinary course of business consistent with the Company's past
practices since the last date of such financial statements.
Section 4.6. Exemption from Registration; Valid Issuances. Subject to the
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accuracy of the Investors' representations in Article III, the sale of the
Common Stock, the Warrants and the Warrant Shares will not require registration
under the Securities Act and/or any applicable state securities law. When issued
and paid for in accordance with the Warrants, the Warrant Shares will be duly
and validly issued, fully paid, and non-assessable. Neither the sales of the
Common Stock, the Warrants or the Warrant Shares pursuant to, nor the Company's
performance of its obligations under, this Agreement, the Registration Rights
Agreement or the Warrants will (i) result in the creation or imposition by the
Company of any liens, charges, claims or other encumbrances upon the Common
Stock, the Warrants or the Warrant Shares or, except as contemplated herein, any
of the assets of the Company, or (ii) entitle theholders of Outstanding Capital
Shares to preemptive or other rights to subscribe for or acquire the Capital
Shares or other securities of the Company. The Common Stock, the Warrants and
the Warrant Shares shall not subject the Investors to personal liability to the
Company or its creditors by reason of the possession thereof.
Section 4.7. No General Solicitation or Advertising in Regard to this
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Transaction. Neither the Company nor any of its affiliates nor, to the knowledge
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of the Company, any person acting on its or their behalf (i) has conducted or
will conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D) or general advertising with respect to the sale of the Common
Stock or the Warrants, or (ii) made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
require registration of the Common Stock, the shares of Common Stock, the
Warrants or the Warrant Shares under the Securities Act.
Section 4.8. No Conflicts. The execution, delivery and performance of this
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Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby, including without limitation the issuance of the shares of
Common Stock, the Warrants and the Warrant Shares, do not and will not (i)
result in a violation of the Company's Certificate of Incorporation or By-Laws
or (ii) conflict with, or constitute a material default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
material agreement, indenture or instrument, or any "lock-up" or similar
provision of any underwriting or similar agreement to which the Company is a
party, or (iii) result in a violation of any federal, state or local law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or by which any material
property or asset of the Company is bound or affected, nor is the Company
otherwise in violation of, conflict with or default under any of the foregoing
(except in each case for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not have, individually or
in the aggregate, a Material Adverse Effect). The business of the Company is not
being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for possible violations that
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either singly or in the aggregate would not have a Material Adverse Effect. The
Company is not required under any Federal, state or local law, rule or
regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement or issue
and sell the Common Stock or the Warrants in accordance with the terms hereof
(other than any SEC, Principal Market or state securities filings that may be
required to be made by the Company subsequent to Closing and any registration
statement that may be filed pursuant hereto); provided that, for purposes of the
representation made in this sentence, the Company is assuming and relying upon
the accuracy of the relevant representations and agreements of the Investors
herein.
Section 4.9. No Material Adverse Change. Since October 31, 2001, no events or
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developments have occurred or exist with respect to the Company that resulted
in, or could reasonably be expected to result in, a Material Adverse Effect,
except as disclosed in the SEC Documents.
Section 4.10. No Undisclosed Events or Circumstances. Since October 31, 2001, no
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event or circumstance has occurred or exists with respect to the Company or its
businesses, properties, prospects, operations or financial condition, that,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been so
publicly announced or disclosed in the SEC Documents.
Section 4.11. No Integrated Offering. Neither the Company, nor any of its
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affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Shares and the Warrants to be integrated with prior offerings by the Company for
purposes of the Securities Act or any applicable shareholder approval
provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the securities of the
Company are listed or designated, nor will the Company take any action or steps
that would cause the offering of the Shares and Warrants to be integrated with
other offerings, in each case in any manner that has resulted or will result in
the loss of all available exemptions from registration under the Securities Act
or violate the rules and regulations of the Principal Exchange.
Section 4.12. Litigation and Other Proceedings. Except as disclosed in the SEC
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Documents, there are no lawsuits or proceedings pending or, to the knowledge of
the Company, threatened, against the Company or any subsidiary, nor has the
Company received any written or oral notice of any such action, suit, proceeding
or investigation, which could reasonably be expected to have a Material Adverse
Effect. Except as set forth in the SEC Documents, no judgment, order, writ,
injunction or decree or award has been issued by or, to the knowledge of the
Company, requested of any court, arbitrator or governmental agency which could
result in a Material Adverse Effect.
Section 4.13. Material Non-Public Information. The Company has not disclosed to
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the Investors any material non-public information that (i) if disclosed, would
reasonably be expected to have a material effect on the price of the Common
Stock or (ii) according to applicable law, rule or regulation, should have been
disclosed publicly by the Company prior to the date hereof but which has not
been so disclosed.
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Section 4.14. Property. Neither the Company nor any of its subsidiaries owns any
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real property. Each of the Company and its subsidiaries has good and marketable
title to all personal property owned by it, free and clear of all liens,
encumbrances and defects except such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to
be made of such property by the Company; and to the Company's knowledge any real
property, mineral or water rights, and buildings held under lease by the Company
as tenant are held by it under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use made and
intended to be made of such property, mineral or water rights, and buildings by
the Company.
Section 4.15. Intellectual Property. Each of the Company and its subsidiaries
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owns or possesses adequate and enforceable rights to use all material patents,
patent applications, trademarks, trademark applications, trade names, service
marks, copyrights, copyright applications, licenses, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business as now being conducted in all material respects. To the Company's
knowledge, except as disclosed in the SEC Documents neither the Company nor any
of its subsidiaries is infringing upon or in conflict with any right of any
other person with respect to any Intangibles. Except as disclosed in the SEC
Documents, no adverse claims have been asserted by any person to the ownership
or use of any Intangibles and the Company has no knowledge of any basis for such
claim.
Section 4.16. Internal Controls and Procedures. The Company maintains books and
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records and internal accounting controls which provide reasonable assurance that
(i) all transactions to which the Company or any subsidiary is a party or by
which its properties are bound are executed with management's authorization;
(ii) the recorded accounting of the Company's consolidated assets is compared
with existing assets at regular intervals; (iii) access to the Company's
consolidated assets is permitted only in accordance with management's
authorization; and (iv) all transactions to which the Company or any subsidiary
is a party or by which its properties are bound are recorded as necessary to
permit preparation of the financial statements of the Company in accordance with
U.S. generally accepted accounting principles.
Section 4.17. Payments and Contributions. Neither the Company, any subsidiary,
--------------------------
nor any of its directors, officers or, to its knowledge, other employees has (i)
used any Company funds for any unlawful contribution, endorsement, gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment of Company funds to any foreign or
domestic government official or employee; (iii) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other similar
payment to any person with respect to Company matters.
Section 4.18. No Misrepresentation. The representations and warranties of the
--------------------
Company contained in this Agreement, any schedule, annex or exhibit hereto and
any agreement, instrument or certificate furnished by the Company to the
Investors pursuant to this Agreement, do not contain any untrue statement of a
material fact or omit to state a material fact required to
11
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE V
Covenants of the Company
Section 5.1. Registration Rights. The Company shall cause the Registration
-------------------
Rights Agreement to remain in full force and effect as provided therein and the
Company shall comply in all material respects with the terms thereof.
Section 5.2. Reservation of Common Stock. As of the date hereof, the Company
---------------------------
has reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to issue the Warrant Shares pursuant to any exercise of the
Warrants.
Section 5.3. Listing of Common Stock. The Company hereby agrees to use its
-----------------------
reasonable best efforts to maintain the listing of the Common Stock on a
Principal Market, and as soon as reasonably practicable following the Closing to
list the shares of Common Stock and the Warrant Shares on the Principal Market.
The Company further agrees, if the Company applies to have the Common Stock
traded on any other Principal Market, it will include in such application the
shares of Common Stock and the Warrant Shares, and will take such other action
as is necessary or desirable in the opinion of the Investors to cause the shares
of Common Stock and Warrant Shares to be listed on such other Principal Market
as promptly as possible. The Company will take all action reasonably necessary
to continue the listing and trading of its Common Stock on a Principal Market
(including, without limitation, maintaining sufficient net tangible assets) and
will comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the Principal Market and shall provide
Investors with copies of any correspondence to or from such Principal Market
which questions or threatens delisting of the Common Stock, within three (3)
Trading Days of the Company's receipt thereof, until the Investors have disposed
of all of their Registrable Securities.
Section 5.4. Exchange Act Registration. The Company will cause its Common Stock
-------------------------
to continue to be registered under Section 12(b) or (g) of the Exchange Act,
will use its best efforts to comply in all respects with its reporting and
filing obligations under the Exchange Act, and will not take any action or file
any document (whether or not permitted by the Exchange Act or the rules
thereunder) to terminate or suspend such registration or to terminate or suspend
its reporting and filing obligations under said Act until the Investors have
disposed of all of their Registrable Securities.
Section 5.5. Legends. The certificates evidencing the Registrable Securities
-------
shall be free of legends, except as set forth in Article VIII and except as may
be required by state securities laws.
Section 5.6. Corporate Existence; Conflicting Agreements. The Company will take
-------------------------------------------
all steps necessary to preserve and continue the corporate existence of the
Company, subject to the business judgment of its Board of Directors. The Company
shall not enter into any agreement,
12
the terms of which agreement would restrict or impair the right or ability of
the Company to perform any of its obligations under this Agreement or any of the
other agreements attached as exhibits hereto.
Section 5.7. Securities Filings. The Company shall make any necessary SEC and
------------------
"blue sky" filings required to be made by the Company in connection with the
sale of the Securities to the Investors as required by all applicable laws, and
shall provide a copy thereof to the Investors promptly after such filing.
ARTICLE VI
Survival; Indemnification
Section 6.1. Survival. The representations, warranties and covenants made by
--------
each of the Company and each Investor in this Agreement, the exhibits hereto and
in each instrument, agreement and certificate entered into and delivered by them
pursuant to this Agreement, shall survive the Closing and the consummation of
the transactions contemplated hereby. In the event of a breach or violation of
any of such representations, warranties or covenants, the party to whom such
representations, warranties or covenants have been made shall have all rights
and remedies for such breach or violation available to it under the provisions
of this Agreement, irrespective of any investigation made by or on behalf of
such party on or prior to the Closing Date.
Section 6.2. Indemnity. (a) The Company hereby agrees to indemnify and hold
---------
harmless the Investors, their respective Affiliates and their respective
officers, directors, partners and members (collectively, the "Investor
Indemnitees"), from and against any and all Damages, and agrees to reimburse the
Investor Indemnitees for all reasonable out-of-pocket expenses (including the
reasonable fees and expenses of legal counsel), in each case promptly as
incurred by the Investor Indemnitees and to the extent arising out of or in
connection with:
(i) any material misrepresentation, omission of any material
fact or breach of any of the Company's representations or warranties
contained in this Agreement, the annexes, schedules or exhibits hereto
or any instrument, agreement or certificate entered into or delivered by
the Company pursuant to this Agreement; or
(ii) any failure by the Company to perform in any material
respect any of its covenants, agreements, undertakings or obligations
set forth in this Agreement, the annexes, schedules or exhibits hereto
or any instrument, agreement or certificate entered into or delivered by
the Company pursuant to this Agreement; or
(iii) any action instituted against the Investors, or any of them,
by any stockholder of the Company who is not an Affiliate of an
Investor, with respect to any of the transactions contemplated by this
Agreement, except for any claim arising out of a breach by any Investor
of this Agreement or the misuse by any Investor of any non-public
information with respect to the Company.
13
(b) Each Investor, severally and not jointly, hereby agrees to indemnify
and hold harmless the Company, its Affiliates and their respective officers,
directors, partners and members (collectively, the "Company Indemnitees"), from
and against any and all Damages, and agrees to reimburse the Company Indemnitees
for reasonable all out-of-pocket expenses (including the reasonable fees and
expenses of legal counsel), in each case promptly as incurred by the Company
Indemnitees and to the extent arising out of or in connection with any material
misrepresentation, omission of a material fact, or breach of any of the
Investor's representations or warranties contained in this Agreement, the
annexes, schedules or exhibits hereto or any instrument, agreement or
certificate entered into or delivered by the Investor pursuant to this
Agreement. Notwithstanding anything to the contrary herein, the Investor shall
be liable under this Section 6.2(b) for only that amount as does not exceed the
net proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to the Registration Statement (including any amount that could be
received by such Investor for Registrable Securities not yet sold).
Section 6.3. Notice. Promptly after receipt by either party hereto seeking
------
indemnification pursuant to Section 6.2 (an "Indemnified Party") of written
notice of any investigation, claim, proceeding or other action in respect of
which indemnification is being sought (each, a "Claim"), the Indemnified Party
promptly shall notify the party from whom indemnification pursuant to Section
6.2 is being sought (the "Indemnifying Party") of the commencement thereof; but
the omission so to notify the Indemnifying Party shall not relieve it from any
liability that it otherwise may have to the Indemnified Party, except to the
extent that the Indemnifying Party is actually prejudiced by such omission or
delay. In connection with any Claim as to which both the Indemnifying Party and
the Indemnified Party are parties, the Indemnifying Party shall be entitled to
assume the defense thereof. Notwithstanding the assumption of the defense of any
Claim by the Indemnifying Party, the Indemnified Party shall have the right to
employ separate legal counsel and to participate in the defense of such Claim,
and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs
and expenses of such separate legal counsel to the Indemnified Party if (and
only if): (x) the Indemnifying Party shall have agreed to pay such fees,
out-of-pocket costs and expenses, (y) the Indemnified Party reasonably shall
have concluded that representation of the Indemnified Party and the Indemnifying
Party by the same legal counsel would not be appropriate due to actual or, as
reasonably determined by legal counsel to the Indemnified Party, potentially
differing interests between such parties in the conduct of the defense of such
Claim, or if there may be legal defenses available to the Indemnified Party that
are in addition to or disparate from those available to the Indemnifying Party,
or (z) the Indemnifying Party shall have failed to employ legal counsel
reasonably satisfactory to the Indemnified Party within a reasonable period of
time after notice of the commencement of such Claim. If the Indemnified Party
employs separate legal counsel in circumstances other than as described in
clauses (x), (y) or (z) above, the fees, costs and expenses of such legal
counsel shall be borne exclusively by the Indemnified Party. Except as provided
above, the Indemnifying Party shall not, in connection with any Claim in the
same jurisdiction, be liable for the fees and expenses of more than one firm of
legal counsel for the Indemnified Party (together with appropriate local
counsel). The Indemnifying Party shall not, without the prior written consent of
the Indemnified Party (which consent shall not unreasonably be withheld), settle
or compromise any Claim or consent to the entry of any judgment that does not
include an unconditional release of the Indemnified Party from all liabilities
with respect to such Claim or judgment.
14
All fees and expenses of the Indemnified Party (including reasonable costs
of defense and investigation in a manner not inconsistent with this Section and,
except as otherwise provided above, all reasonable attorneys' fees and expenses)
shall be paid to the Indemnified Party, as incurred, within ten (10) Trading
Days of written notice thereof to the Indemnifying Party (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses,
with interest at market rates, to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification hereunder).
Section 6.4. Direct Claims. In the event one party hereunder should have a claim
-------------
for indemnification that does not involve a claim or demand being asserted by a
third party, the Indemnified Party promptly shall deliver notice of such claim
to the Indemnifying Party. If the Indemnifying Party disputes the claim, such
dispute shall be resolved by mutual agreement of the Indemnified Party and the
Indemnifying Party or by binding arbitration conducted in accordance with the
procedures and rules of the American Arbitration Association as set forth in
Article IX. Judgment upon any award rendered by any arbitrators may be entered
in any court having competent jurisdiction thereof.
ARTICLE VII
Due Diligence Review; Non-Disclosure of Non-Public Information.
Section 7.1. Due Diligence Review. Subject to Section 7.2, the Company shall
--------------------
make available for inspection and review by the Investors, advisors to and
representatives of the Investors (who may or may not be affiliated with the
Investors and who are reasonably acceptable to the Company), and any underwriter
participating in any disposition of the Registrable Securities on behalf of the
Investors pursuant to the Registration Statement, upon the request of the
Investors, any such registration statement or amendment or supplement thereto or
any blue sky, Nasdaq or other filing, all publicly available SEC Documents and
other filings with the SEC, and all other publicly available corporate documents
and properties of the Company as may be reasonably necessary for the purpose of
such review, and cause the Company's officers, directors and employees to supply
all such publicly available information reasonably requested by the Investors or
any such representative, advisor or underwriter in connection with such
Registration Statement (including, without limitation, in response to all
questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the Investors and such
representatives, advisors and underwriters and their respective accountants and
attorneys to conduct initial and ongoing due diligence with respect to the
Company and the accuracy of the Registration Statement.
Section 7.2. Non-Disclosure of Non-Public Information.
----------------------------------------
(a) The Company shall not disclose material non-public information to
the Investors, advisors to or representatives of the Investors unless prior to
disclosure of such information the
15
Company identifies such information as being non-public information and provides
the Investors, such advisors and representatives with the opportunity to accept
or refuse to accept such non-public information for review. The Company may, as
a condition to disclosing any non-public information hereunder, require the
Investors and their respective advisors and representatives to enter into a
confidentiality agreement in form and content reasonably satisfactory to the
Company and the Investors.
(b) Nothing herein shall require the Company to disclose material
non-public information to the Investors or their advisors or representatives,
and the Company represents that it does not disseminate material non-public
information in violation of Regulation FD promulgated by the Commission, to any
investors who purchase stock in the Company in a public offering, to money
managers or to securities analysts; provided, however, that notwithstanding
anything herein to the contrary, the Company will, as hereinabove provided,
promptly notify the advisors and representatives of the Investors and, if any,
underwriters, of any event or the existence of any circumstance (without any
obligation to disclose the specific event or circumstance) of which it becomes
aware, constituting material non-public information (whether or not requested of
the Company specifically or generally during the course of due diligence by such
persons or entities), which, if not disclosed in the prospectus included in the
Registration Statement would cause such prospectus to include a material
misstatement or to omit a material fact required to be stated therein in order
to make the statements, therein in light of the circumstances in which they were
made, not misleading. Nothing contained in this Section 7.2 shall be construed
to mean that such persons or entities other than the Investors (without the
written consent of the Investors prior to disclosure of such information as set
forth in Section 7.2(a)) may not obtain non-public information in the course of
conducting due diligence in accordance with the terms of this Agreement and
nothing herein shall prevent any such persons or entities from notifying the
Company of their opinion that based on such due diligence by such persons or
entities, that the Registration Statement contains an untrue statement of a
material fact or omits a material fact required to be stated in the Registration
Statement or necessary to make the statements contained therein, in light of the
circumstances in which they were made, not misleading.
ARTICLE VIII
Legends; Transfer Agent Instructions
Section 8.1. Legends. Unless otherwise provided below, each certificate
-------
representing Registrable Securities will bear the following legend or equivalent
(the "Legend"), and such other legends as may be required under state securities
laws:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE
16
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM SUCH
REGISTRATION.
Section 8.2. No Other Legend or Stock Transfer Restrictions. No legend other
----------------------------------------------
than the ones specified in Section 8.1 has been or shall be placed on the share
certificates representing the Registrable Securities and no instructions or
"stop transfer orders," "stock transfer restrictions," or other restrictions
have been or shall be given to the Company's transfer agent with respect thereto
other than as expressly set forth in this Article VIII. The Company will provide
its transfer agent with instructions and any necessary legal opinions to enable
the transfer agent to issue or re-issue all of the Shares without such
restrictive legends upon effectiveness of the Registration Statement.
Section 8.3. Investors' Compliance. Nothing in this Article shall affect in
---------------------
any way each Investor's obligations to comply with all applicable securities
laws upon resale of the Common Stock.
ARTICLE IX
Choice of Law; Arbitration
Section 9.1. Governing Law/Arbitration. This Agreement shall be governed by and
-------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made in New York by persons domiciled in New York City and without
regard to its principles of conflicts of laws. Any dispute under this Agreement
shall be submitted to arbitration under the American Arbitration Association
(the "AAA") in New York City, New York, and shall be finally and conclusively
determined by the decision of a board of arbitration consisting of three (3)
members (hereinafter referred to as the "Board of Arbitration") selected
according to the rules governing the AAA. The Board of Arbitration shall meet on
consecutive business days in New York City, New York, and shall reach and
render a decision in writing (concurred in by a majority of the members of the
Board of Arbitration) with respect to the amount, if any, which the losing party
is required to pay to the other party in respect of a claim filed. In connection
with rendering its decisions, the Board of Arbitration shall adopt and follow
the laws of the State of New York unless the matter at issue is the corporation
law of the company's state of incorporation, in which event the corporation law
of such jurisdiction shall govern such issue. To the extent practical, decisions
of the Board of Arbitration shall be rendered no more than thirty (30) calendar
days following commencement of proceedings with respect thereto. The Board of
Arbitration shall cause its written decision to be delivered to all parties
involved in the dispute. Any decision made by the Board of Arbitration (either
prior to or after the expiration of such thirty (30) calendar day period) shall
be final, binding and conclusive on the parties to the dispute, and entitled to
be enforced to the fullest extent permitted by law and entered in any court of
competent jurisdiction. The Board of Arbitration shall be authorized and is
hereby directed to enter a default judgment against any party failing to
participate in any proceeding hereunder within the time periods set forth in the
AAA rules. The non-prevailing party to any arbitration (as determined by the
Board of Arbitration) shall pay the expenses of the prevailing party, including
reasonable attorney's fees, in connection with such arbitration. Any party shall
be
17
entitled to seek injunctive relief from a court in any case where such relief
is available, and the non-prevailing party to any such injunctive proceeding
shall pay the expenses of the prevailing party, including reasonable attorney's
fees, in connection with such proceeding.
ARTICLE X
Assignment
Section 10.1. Assignment. Neither this Agreement nor any rights of the Investors
----------
or the Company hereunder may be assigned by either party to any other person.
Notwithstanding the foregoing, (a) the provisions of this Agreement shall inure
to the benefit of, and be enforceable by, any permitted transferee of any of the
Common Stock or Warrants purchased or acquired by any Investor hereunder with
respect to the Common Stock or Warrants held by such person, and (b) upon the
prior written consent of the Company, which consent shall not unreasonably be
withheld or delayed, each Investor's interest in this Agreement may be assigned
at any time, in whole or in part, to an Affiliate of the Investor or any other
person or entity who purchases substantially all of the Shares of such Investor,
provided that in each case such transferee shall agree to make the
representations and warranties contained in Article III and shall agree to be
bound by the terms of this Agreement.
ARTICLE XI
Notices
Section 11.1. Notices. All notices, demands, requests, consents, approvals, and
-------
other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) hand delivered, (ii) deposited
in the mail, registered or certified, return receipt requested, postage prepaid,
(iii) delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by facsimile, addressed as set forth below or to such other address
as such party shall have specified most recently by written notice. Any notice
or other communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the first business day
following the date of sending by reputable courier service, fully prepaid,
addressed to such address, or (c) upon actual receipt of such mailing, if
mailed. The addresses for such communications shall be:
18
If to the Company: IMPCO Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to (shall not
constitute notice): ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
if to the Investors: As set forth on the signature pages hereto
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 11.1 by giving written notice of such changed
address or facsimile number to the other party hereto as provided in this
Section 11.1.
ARTICLE XII
Miscellaneous
Section 12.1. Counterparts/ Facsimile/ Amendments. This Agreement may be
-----------------------------------
executed in multiple counterparts, each of which may be executed by less than
all of the parties and shall be deemed to be an original instrument which shall
be enforceable against the parties actually executing such counterparts and all
of which together shall constitute one and the same instrument. Except as
otherwise stated herein, in lieu of the original documents, a facsimile
transmission or copy of the original documents shall be as effective and
enforceable as the original. This Agreement may be amended only by a writing
executed by all parties.
Section 12.2. Entire Agreement. This Agreement and the agreements attached as
----------------
Exhibits hereto, which include the Warrants and the Registration Rights
Agreement, set forth the entire agreement and understanding of the parties
relating to the subject matter hereof and supersede all prior and
contemporaneous agreements, negotiations and understandings between the parties,
both oral and written relating to the subject matter hereof. The terms and
conditions of all Exhibits to this Agreement are incorporated herein by this
reference and shall constitute part of this Agreement as if fully set forth
herein.
19
Section 12.3. Severability. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any party.
Section 12.4. Headings. The headings used in this Agreement are used for
--------
convenience only and are not to be considered in construing or interpreting this
Agreement.
Section 12.5. Number and Gender. There may be one or more Investor parties to
-----------------
this Agreement, which Investors may be natural persons or entities. All
references to plural Investors shall apply equally to a single Investor if there
is only one Investor, and all references to an Investor as "it" shall apply
equally to a natural person.
Section 12.6. Replacement of Certificates. Upon (i) receipt of evidence
---------------------------
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of a certificate representing the Common Stock or any shares of
Common Stock or Warrants or any Warrant Shares and (ii) in the case of any such
loss, theft or destruction of such certificate, upon delivery by the Investor of
an indemnity agreement or security reasonably satisfactory in form to the
Company (which shall not include the posting of any bond other than that
required by the Company's transfer agent) or (iii) in the case of any such
mutilation, on surrender and cancellation of such certificate, the Company at
its expense will execute and deliver, in lieu thereof, a new certificate of like
tenor.
Section 12.7. Fees and Expenses. Each of the Company and the Investors agrees to
-----------------
pay its own expenses incident to the performance of its obligations hereunder.
Section 12.8. Brokerage. Each of the parties hereto represents that it has had
---------
no dealings in connection with this transaction with any finder or broker who
will demand payment of any fee or commission from the other party except for
Ladenburg ▇▇▇▇▇▇▇▇ & Co. Inc., whose fee shall be paid on the Company's behalf
as provided herein. The Company on the one hand, and the Investors, on the other
hand, agree to indemnify the other against and hold the other harmless from any
and all liabilities to any person claiming brokerage commissions or finder's
fees on account of services purported to have been rendered on behalf of the
indemnifying party in connection with this Agreement or the transactions
contemplated hereby.
Section 12.9. Publicity. Except as contemplated by this Agreement and the
---------
Registration Rights Agreement and except as required by applicable law, the
Company agrees that (i) it will not issue any press release or other public
announcement of the transactions contemplated by this Agreement without the
prior consent of the Investors, which shall not be unreasonably withheld nor
delayed by more than two (2) Trading Days from their receipt of such proposed
release, and (ii) no release shall name the Investors without their express
consent. The Company will issue a press release describing the transaction
contemplated by this Agreement within one business day of Closing, and shall
file a Form 8-K with respect to the same within five business days of Closing.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
IMPCO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Title: Chief Financial Officer and Treasurer
----------------------------------------------
[signature pages continued]
21
Address: Investor:
Fax: By:__________________________________
Name:
Authorized Signatory
Number of Shares:
Total Purchase Price:
22
The following Investors have executed the Common Stock and Warrants Purchase
Agreement as of January 11, 2002 on counter-part signature pages:
Investor Name Amount of Shares
-----------------------------------------------------------------------
Catalyst Partners L.P. 242,500
-----------------------------------------------------------------------
Catalyst International Ltd. 7,500
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Cranshire Capital L.P. 204,445
-----------------------------------------------------------------------
Euram Cap Strat. "A" Fund Ltd. 62,222
-----------------------------------------------------------------------
Gryphon Master Fund 222,222
-----------------------------------------------------------------------
Quantico Partners, LP 222,222
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Smithfield Fiduciary LLC 133,333
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▇▇▇▇ ▇▇▇▇▇▇ Capital Partners Ltd 372,223
-----------------------------------------------------------------------
CIBC Int'l Arbitrage Corp. 57,999
-----------------------------------------------------------------------
Abington Capital Limited Partnership 71,111
-----------------------------------------------------------------------
Pit Bull Partners, LLC 35,556
-----------------------------------------------------------------------
Santac Associates 17,778
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 53,334
-----------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 35,556
-----------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ 10,000
-----------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,500
-----------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 7,500
-----------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,000
-----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ 10,000
-----------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ 25,000
-----------------------------------------------------------------------
23
-----------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 15,000
-----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ 5,000
-----------------------------------------------------------------------
Nob Hill Capital Partners LP 22,000
-----------------------------------------------------------------------
Matador Microcap Fund, LP 5,000
-----------------------------------------------------------------------
Everglades Offshore Fund, Ltd 15,000
-----------------------------------------------------------------------
Everglades Partners, LP 14,700
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Contrarian Opportunities Fund, LP 3,400
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Pleiades Partners 4,000
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Winston Growth Fund, LP 2,300
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OTATO Limited Partnership 44,444
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 17,777
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▇▇▇ ▇▇▇▇▇▇▇▇ 25,878
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Comfort Investment Co. Ltd 10,000
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▇▇▇▇▇ Bros L.P. 10,000
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▇▇▇▇ ▇▇▇▇▇▇▇ 2,500
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24
Schedule 4.1
------------
List of Subsidiaries
--------------------
Subsidiary Jurisdiction of Formation
------------------------------------------------- ----------------------------
Quantum Fuel Systems Technologies Worldwide, Inc. Delaware
IMPCO-BERU Technologies B.V. Netherlands
Grupo I.M.P.C.O. Mexicano, S. de ▇.▇. de C.V. Mexico
IMPCO Technologies, Pty. Limited Australia
IMPCO Tech Japan K.K. Japan
IMPCO Fuel Systems Australia
IMPCO Europe B.V. Netherlands
IMPCO Venezuela S. de ▇.▇. Venezuela
25