Exhibit 99.1
IMP, INC.
STOCK PURCHASE AGREEMENT
SEPTEMBER 28, 2001
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of September 28, 2001 (the
"Agreement"), by and among IMP, Inc., a Delaware corporation (the "Company"),
Subba Mok LLC, a Delaware limited liability company whose members include Subba
Rao Pinamaneni, K.Y. Mok, Dilip Kumor V. Lakhi, John Chu, Sugriva Reddy, Tarsaim
Batra, Moiz Khambaty and Sam Lee ("Subba Mok LLC"), and the other purchasers
listed on the signature page hereto (collectively, together with Subba Mok LLC,
the "Purchasers").
RECITALS
A. The Company and Subba Mok LLC, or persons affiliated with Subba
Mok 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, Teamasia Semiconductors (India) Limited 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. In connection with the transactions contemplated by the
Investment MOU and the Amendment MOU, the Company proposes to
issue and sell to the Purchasers, and the Purchasers propose to
purchase from the Company, shares of common stock, par value
$0.01 per share (the "Common Stock"), in accordance with the
terms and subject to the conditions set forth in this Agreement.
D. 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 (the "Reverse Split").
NOW, THEREFORE, in consideration of the promises and the covenants and
agreements of the parties herein contained, and intending to be legally bound,
the parties hereby agree as follows:
AGREEMENT
ARTICLE 1
PURCHASE AND SALE OF STOCK
SECTION 1.1. Closing.
(a) In accordance with the terms and subject to the conditions set forth
in this Agreement, the Purchasers agree to purchase at the Closing (as defined
below), and the Company agrees to sell and issue to the Purchasers at the
Closing, an aggregate of 5,482,284 shares (giving effect to the Reverse Split)
(the "Shares") of Common Stock for an aggregate purchase price equal to
$6,000,000.
(b) The purchase and sale of the Shares ( the "Closing") shall take
place at the offices
of the Company at 9:00 a.m., San Jose time, on the date hereof, or at such other
time and place as the Company and the Purchasers mutually agree upon in writing
(the "Closing Date"). At the Closing, the Company shall deliver to each
Purchaser a certificate representing the number of Shares set forth below such
Purchaser's name on the signature page hereto against delivery to the Company by
the Purchasers by wire transfer, certified check for immediately available funds
payable to the Company's order or other manner approved by the Company
(including, without limitation, through the delivery to the Company of one or
more letters of credit) an aggregate amount equal to $6,000,000 less any
Prepayment Amount (as defined), provided that any such letters of credit shall
(a) be irrevocable, (b) be issued by a reputable bank for the benefit of the
Company and/or one or more of the Company's suppliers, (c) be created by, and
for the sole risk of, the Purchasers and/or their affiliates with no recourse to
the Company, (d) not contain any conditions to the drawing of funds thereunder,
(e) be reasonably satisfactory in form and substance to the Company, (f) be
fully drawn down by the Closing Date or have a reasonable likelihood of being
fully drawn down prior to the expiration date of the letters of credit and
further provided that title to the goods that are the subject of the letters of
credit is irrevocably transferred to the Company promptly after draw down of the
letters of credit. Prior to the Closing, the Purchasers shall provide the
Company with an accounting (including reasonable backup documentation) of the
Prepayment Amount to be applied toward the purchase price. The Purchasers shall
provide all financial and other information reasonably requested by the Company
in connection with the Company's review of such accounting, which shall be
subject to review by the Company's outside legal counsel and Board of Directors.
SECTION 1.2. Management Advances; Prepayment Amount.
(a) Subba Mok LLC confirms that, prior to 8:00 a.m. on May 7, 2001,
affiliates of Subba Mok LLC provided short-term bridge financing to the Company
in an aggregate amount of approximately $1.4 million (collectively, the
"Management Advances"). The Management Advances shall not be applied towards the
$6.0 million purchase price to be paid by the Purchasers and/or any of their
affiliates and shall remain unsecured obligations of the Company subject to set
off against other amounts due to the Company by the Purchasers and/or any of
their affiliates. Notwithstanding the foregoing, all payments made to the
Company by the Purchasers and/or their affiliates after 8:00 a.m. on Monday, May
7, 2001 shall be deemed to be advances towards, and shall be applied against,
the $6.0 million purchase price. The aggregate of such purchase price advances
is referred to herein as the "Prepayment Amount."
(b) The Purchasers represent that, as of August 1, 2001, they had
delivered to the Company, and the Company represents that it has received, by
wire transfer, certified check for immediately available funds payable to the
Company's order or other manner approved by the Company (including, without
limitation, through the delivery to the Company of one or more letters of
credit) an aggregate Prepayment Amount equal to $6,000,000. The Purchasers
represent, and the Company confirms, that any such letters of credit (a) were
irrevocable, (b) were issued by a reputable bank for the benefit of the Company
and/or one or more of the Company's suppliers, (c) were created by, and for the
sole risk of, the Purchasers and/or their affiliates with no recourse to the
Company, (d) did not contain any conditions to the drawing of funds thereunder,
(e) were reasonably satisfactory in form and substance to the Company, (f) were
fully drawn down by the Closing Date or have a reasonable likelihood of being
fully drawn
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down prior to the expiration date of the letters of credit and further
represents that title to the goods that are the subject of the letters of credit
was or will be irrevocably transferred to the Company promptly after draw down
of the letters of credit.
SECTION 1.3. The Purchasers acknowledge, and agree to the terms of, (a)
the Amended and Restated Convertible Debenture and (b) the Warrant Agreement, in
each case to be entered into by and between the Company and Teamasia
Semiconductors (India) Limited in connection with the transactions contemplated
by the Investment MOU, the Amendment MOU and this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company represents and warrants that:
SECTION 2.1. Organization and Good Standing; Capitalization. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power and authority to own,
lease and operate its property and assets and to conduct its business as
presently conducted. As of the date of this Agreement, the authorized capital
stock of the Company consists of 20,000,000 shares of Common Stock, of which
1,769,727 shares are issued and outstanding, and 1,000,000 shares of preferred
stock, none of which are issued and outstanding.
SECTION 2.2. Validity of Stock. The Shares to be sold pursuant to this
Agreement, when issued, sold, and delivered in accordance with the terms of this
Agreement, will be duly and validly issued, fully paid and non-assessable.
SECTION 2.3. Authorization; Approvals. All action on the part of the
Company and its stockholders necessary for the authorization, execution and
delivery of this Agreement and the performance of the Company's obligations
hereunder, including the authorization, issuance and delivery of the Shares, has
been taken. This Agreement constitutes the valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors rights generally or by
general equitable principles.
SECTION 2.4. No Conflict with Other Instruments. The execution, delivery
and performance of this Agreement does not and will not result in any violation
of, conflict with, or constitute a default under any terms or provision of the
Company's Certificate of Incorporation, as amended, or Bylaws, as amended.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
The Purchasers represent and warrant that:
SECTION 3.1. Organization; Authorization.
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(a) Subba Mok LLC is a limited liability company duly organized and
validly existing under the laws of the State of Delaware and has power and
authority to own, lease and operate its property and assets and to conduct its
business as presently conducted. The initial members of Subba Mok LLC are Subba
Rao Pinamaneni, K.Y. Mok, Dilip Kumor V. Lakhi, John Chu, Sugriva Reddy, Tarsaim
Batra, Moiz Khambaty and Sam Lee. Subba Rao Pinamaneni is the sole managing
member of Subba Mok LLC. Except for Sam Lee and Sugriva Reddy, each of such
initial members is currently employed by the Company as a member of the
Company's senior management. Subba Mok LLC and each member of Subba Mok LLC
represent to the Company that all material information as to the Company's
business, assets and financial condition has been disclosed to the Company's
Board of Directors.
(b) Each Purchaser other than Subba Mok LLC is not a U.S. Person (as
defined under the Securities Act of 1933, as amended (the "Securities Act")).
(c) Each Purchaser has full power and authority to enter into and to
perform this Agreement in accordance with its terms. This Agreement has been
duly executed and delivered by each Purchaser and constitutes a valid and
legally binding obligation of such Purchaser, enforceable against such Purchaser
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors rights generally or by general equitable principles.
SECTION 3.2. Investment Representations. Each Purchaser and each member
of Subba Mok LLC is acquiring the Shares for its own account, for investment
purposes and not with a view to, or for sale in connection with, any
distribution of such securities or any part thereof in violation of federal or
state securities laws.
SECTION 3.3. Investment Experience; Access to Information.
(a) Each Purchaser and each member of Subba Mok LLC, or a person acting
in his, her or its capacity as "purchaser representative" (as defined in
Regulation D of the Securities Act) for such Purchaser or member, are
"accredited investors" as that term is defined in Rule 501(a) promulgated under
the Securities Act; are sophisticated investors; are able to fend for themselves
in the transactions contemplated by this Agreement; have such knowledge and
experience in financial, business and investment matters as to be capable of
evaluating the merits and risks of this investment; have the ability to bear the
economic risks of this investment; and have had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Securities
Act, all as necessary for such Purchaser or member, or such "purchaser
representative," to make an informed investment decision with respect to the
purchase of the Shares.
(b) Each Purchaser and each member of Subba Mok LLC are aware of the
following:
(1) the Shares are a speculative investment which involve a
substantial degree of risk of loss by such Purchaser or member of such
Purchaser's or member's entire investment in the Company and that such Purchaser
or member understands and takes full cognizance of the risks related to the
purchase of the Shares;
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(2) no federal or state agency has made any findings as to the
fairness of the terms of the offering; and
(3) any projections or predictions that may have been made
available to any Purchaser or member are based on estimates, assumptions and
forecasts which may prove to be incorrect, and no assurance is given that actual
results will correspond with the results contemplated by the various
projections;
(c) At no time has it been explicitly or implicitly represented,
guaranteed or warranted to any Purchaser or member of Subba Mok LLC by the
Company, the agents and employees of the Company, or any other person:
(1) that a percentage of profit and/or amount or type of
consideration will be realized as a result of this investment;
(2) that any cash dividends from Company operations or otherwise
will be made to stockholders by any specific date or will be made at all; or
(3) that any specific tax benefits will accrue as a result of an
investment in the Company.
(d) Each Purchaser and each member of Subba Mok LLC have relied only on
the information contained in this Agreement, and no written or oral
representation or information that is in any way inconsistent with this
Agreement and have been made or furnished to any Purchaser or any member of
Subba Mok LLC or to any "purchaser representative" in connection with the
offering of the Shares, and if so made, has not been relied upon.
(e) At no time was any Purchaser or any member of Subba Mok LLC
presented with or solicited by any leaflet, public promotional meeting,
newspaper or magazine article, radio or television advertisement or any other
form of advertising or general solicitation.
(f) Each Purchaser and each member of Subba Mok LLC have had prior
personal or business relationships with the Company or its affiliates (including
the employment of certain members of Subba Mok LLC as members of the Company's
senior management), or by reason of such Purchaser's or member's business or
financial experience (either alone or with the aid of a purchaser
representative), and each Purchaser and each member of Subba Mok LLC have the
capacity to protect such Purchaser's or member's own interest in connection with
this transaction.
(g) Each Purchaser and each member of Subba Mok LLC have been advised to
consult with such Purchaser's or member's own attorney regarding legal matters
concerning an investment in the Company and has done so to the extent such
Purchaser or member considers necessary.
SECTION 3.4. Absence of Registration. Each Purchaser and each member of
Subba Mok LLC understand that the Shares to be sold and issued hereunder may not
be sold by such Purchaser or member unless subsequently registered under the
Securities Act, or an exemption from such registration is available.
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SECTION 3.5. Restrictions on Transfer. Each Purchaser and each member of
Subba Mok LLC agree that (a) it will not offer, sell, pledge, hypothecate, or
otherwise dispose of the Shares other than to its "affiliates" unless such
offer, sale, pledge, hypothecation or other disposition is (i) registered under
the Securities Act, (ii) in accordance with the provisions of Regulation S under
the Securities Act, if applicable, or (iii) in compliance with an opinion of
counsel to the Purchaser or such member, delivered to the Company and reasonably
acceptable to it, to the effect that such offer, sale, pledge, hypothecation or
other disposition thereof does not violate the Securities Act, and (b) the
certificate(s) representing the Shares shall bear a legend stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED OTHER THAN TO AFFILIATES OF THE REGISTERED HOLDER HEREOF
UNLESS AND UNTIL REGISTERED UNDER SAID ACT OR, IN THE OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION DOES NOT VIOLATE
THE PROVISIONS THEREOF.
Each Purchaser other than Subba Mok LLC agrees not to engage in hedging
transactions with regard to the Common Stock prior to the expiration of the
distribution compliance period specified in Rule 903 under the Securities Act
(unless in compliance with the Securities Act).
For purposes of this Section 3.5, "affiliate" of a Purchaser means (i)
any entity more than 10% of the voting stock or other voting interest of which
is owned, directly or indirectly through one or more intermediaries, by the
Purchaser, (ii) any entity which owns, directly or indirectly through one or
more intermediaries, more than 10% of the voting stock of the Purchaser and
(iii) any entity of which 10% or more of the voting stock is owned by an
affiliate of the Purchaser. Upon request of a holder of Common Stock, the
Company shall remove the legend set forth above from the certificates evidencing
such Common Stock or issue to such holder new certificates therefor free of such
legend, if with such request the Company shall have received an opinion of
counsel selected by the holder and reasonably satisfactory to the Company, in
form and substance reasonably satisfactory to the Company, to the effect that
such Common Stock is not required by the Securities Act to continue to bear the
legend.
SECTION 3.6. Transfer Instructions. Each Purchaser and each member of
Subba Mok LLC agree that the Company may provide for appropriate transfer
instructions to implement the provisions of Section 3.5.
SECTION 3.7. Economic Risk. Each Purchaser and each member of Subba Mok
LLC understand that it must bear the economic risk of the investment represented
by the purchase of Shares for an indefinite period.
SECTION 3.8. Fees and Commissions. Each Purchaser and each member of
Subba
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Mok LLC represent and warrant that they have retained, or otherwise authorized
to act, no intermediary in connection with the transactions contemplated by this
Agreement and agree to indemnify and hold harmless the Company from liability
for any compensation to any intermediary retained or otherwise authorized to act
by, or on behalf of, such Purchaser and the fees and expenses of defending
against such liability or alleged liability.
SECTION 3.9. Certain Obligations. Subba Mok LLC has caused the Company
to pay, and the Company has paid, all amounts due and owing with regard to the
statutory withholdings, insurance premiums, health/dental premiums and rent in
an aggregate amount equal to $712,000 as set forth in Exhibit B to the
Investment MOU.
ARTICLE 4
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
SECTION 4.1. Conditions to Obligations of the Purchasers. The
obligations of the Purchasers on the Closing Date to purchase the Shares under
this Agreement shall be subject to each of the following conditions precedent,
which may be waived by the Purchasers:
(a) Representations and Warranties. The representations and warranties
made by the Company herein shall be true and accurate in all material respects
on and as of the Closing Date as if made on the Closing Date.
(b) Performance. The Company shall have performed and complied with all
agreements and conditions contained herein or in other ancillary documents
incident to the transactions contemplated by this Agreement required to be
performed or complied with by it prior to or at the Closing in all material
respects.
(c) Consents, etc. The Company shall have secured all permits, consents
and authorizations that shall be necessary to consummate the transactions
contemplated by this Agreement.
(d) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory to the Purchasers and their counsel, and the Purchasers and their
counsel shall have received all such counterpart originals or certified or other
copies of such documents as the Purchasers or their counsel may reasonably
request.
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF COMPANY
SECTION 5.1. Conditions to Obligations of the Company. The obligations
of the Company on each Closing Date to issue and sell the Shares under this
Agreement shall be subject to the following conditions precedent, which may be
waived by the Company:
(a) Representations and Warranties. The representations and warranties
made by the Purchasers herein (including, without limitation, those applicable
to the members of Subba Mok
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LLC) shall be true and accurate in all material respects on and as of the
Closing Date as if made on the Closing Date.
(b) Performance. The Purchasers shall have performed and complied with
all agreements and conditions contained herein or in other ancillary documents
incident to the transactions contemplated by this Agreement required to be
performed or complied with by them prior to or at the Closing in all material
respects.
(c) Consents, etc. The Company shall have secured all permits, consents
and authorizations that shall be necessary to consummate the transactions
contemplated by this Agreement.
(d) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory to the Company and its counsel, and the Company and its counsel
shall have received all such counterpart originals or certified or other copies
of such documents as the Company or its counsel may reasonably request.
ARTICLE 6
AFFIRMATIVE COVENANTS
SECTION 6.1. Piggy-Back Registrations. If at any time the Company shall
determine to register for its own account or the account of others under the
Securities Act any of its equity securities, other than on Form S-8 or Form S-4
or their then equivalents (a "Piggy-Back Registration"), it shall send to the
Purchasers written notice of such determination and, if within fifteen (15) days
after receipt of such notice, the Purchasers shall so request in writing, the
Company shall use its diligent efforts to include in such registration statement
all or any part of the Registrable Shares (as defined below) the Purchasers
request to be registered, except that if, in connection with any offering
involving an underwriting of Common Stock to be issued by the Company, the
managing underwriter shall impose a limitation on the number of shares of Common
Stock which may be included in the registration statement because, in its
judgment, such limitation is necessary to effect an orderly public distribution,
then the Company shall be obligated to include in such registration statement
only such limited portion (or none, if so required by the managing underwriter)
of the Registrable Shares with respect to which such Holder has requested
inclusion hereunder. "Registrable Shares" shall mean and include shares of
Common Stock held by the Purchasers; provided, however, that shares of Common
Stock which are Registrable Shares shall cease to be Registrable Shares upon the
consummation of any sale of such shares pursuant to a registration statement or
Rule 144 under the Securities Act.
SECTION 6.2. Demand Registrations. Upon the written request of Subba Mok
LLC, the Company shall use its diligent efforts to effect qualification and
registration under the Securities Act on Form S-1 or Form S-3 of all or such
portion of the Registrable Shares as Subba Mok LLC shall specify; provided,
however, the Company shall not be required to effect a registration pursuant to
this Section 6.2 unless the market value of the Registrable Shares to be sold by
Subba Mok LLC in any such registration shall be at least $2,000,000 at the time
of filing such registration statement, and further provided that the Company
shall not be required to effect (i) any registration during the first six (6)
months immediately following the Closing Date and
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(ii) more than three registrations in the aggregate pursuant to this Section
6.2.
SECTION 6.3. Effectiveness. The Company will use its diligent efforts to
maintain the effectiveness for up to one hundred twenty (120) days (or such
shorter period of time as the underwriters need to complete the distribution of
the registered offering, or ninety (90) days in the case of a "shelf"
registration statement on Form S-1 or Form S-3) of any registration statement
pursuant to which any of the Registrable Shares are being offered, and from time
to time will amend or supplement such registration statement and the prospectus
contained therein to the extent necessary to comply with the Securities Act and
any applicable state securities statute or regulation. The Company will also
provide the Purchasers with as many copies of the prospectus contained in any
such registration statement as they may reasonably request.
SECTION 6.4. Board of Directors. Prior to the Closing Date, neither the
Company nor any Purchaser will take any action to change the size or composition
of the Company's Board of Directors.
SECTION 6.5. Audit of Management Advances. The Company will audit the
Management Advances prior to the Closing. Subba Mok LLC shall provide all
financial and other information reasonably requested by the Company in
connection with such audit, which shall be subject to review by the Company's
outside legal counsel. The results of such audit will be promptly reported to
the Company's Board of Directors.
SECTION 6.6. Letters of Credit. The Company will not, and no Purchaser
nor any member of Subba Mok LLC will cause the Company to, redeem or otherwise
incur any liability in connection with any letter of credit delivered to the
Company and/or one or more of the Company's suppliers pursuant to the provisions
of Article 1 of this Agreement.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Termination.
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by the written agreement of the Company and Subba Mok LLC;
(ii) by the Company if there is a material breach of any
representation or warranty set forth in Article 3 or any covenant or agreement
to be complied with or performed by any Purchaser pursuant to the terms of this
Agreement and such breach persists for fourteen (14) days or more after written
notice is given, so long as any such breach is not caused by the action or
inaction of the Company;
(iii) by Subba Mok LLC if there is a material breach of any
representation or warranty set forth in Article 2 or any covenant or agreement
to be complied with or performed by the Company pursuant to the terms of this
Agreement and such breach persists for fourteen (14) days or more after written
notice is given, so long as any such breach is not caused by the action or
inaction of any Purchaser; or
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(iv) by the Company if any Purchaser shall fail to make any
payment in full that it is obligated to make under this Agreement within 3
business days of the Closing Date, provided that the issuance of the Shares at
the Closing shall be delayed until the Company has received the full amount of
all such payments.
(b) In the event that this Agreement is terminated for any reason, the
Company will (i) redeem all Shares previously issued to the Purchasers in
accordance with this Agreement at the price paid therefor by the Purchasers and
(ii) without duplication of clause (i), repay any Prepayment Amount and/or
Closing Prepayment; provided, however, that in connection with the repayment of
any Prepayment Amount or Closing Prepayment not originally paid in cash by the
Purchasers and/or their affiliates, or paid by letters of credit to the extent
that they have not been fully drawn down or are not reasonably certain of being
fully drawn down prior to the expiration date of the letters of credit or in the
event that title to the goods that are the subject of the letters of credit has
not been irrevocably transferred to the Company, the Company shall not be
obligated to repay such amounts in cash.
(c) In the event of termination of this Agreement, no party hereto shall
have any liability to any party to this Agreement, except for any willful breach
of, or knowing misrepresentation made in, this Agreement occurring prior to the
formal termination of this Agreement.
SECTION 7.2. Survival of Agreements. All agreements, representations and
warranties contained herein or made in writing by or on behalf of the Company in
connection with the transactions contemplated hereby shall terminate upon the
Closing.
SECTION 7.3. Notices. All notices, requests, consents and other
communications herein shall be in writing and shall be mailed by first-class
certified mail, postage prepaid and return receipt requested, personally
delivered, faxed, or sent by recognized overnight courier service, as follows:
(a) If to the Company:
IMP, Inc.
2830 North First Street
San Jose, California 95143-2071
Attention: Chief Executive Officer
Fax: (408) 434-5904
With a copy to
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
Attention: William Davisson, Esq.
Fax: (650) 463-2600
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(b) If to the Purchasers:
Subba Mok LLC
c/o IMP Inc.
2830 North First Street
San Jose, California 95143-2071
Attention: Subba Rao Pinanameni
Fax: 408-434-5904
or such other addresses as each of the parties hereto may provide from time to
time in writing to the other parties.
SECTION 7.4. Modifications; Waiver. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or in
writing, except that any provision of this Agreement may be amended and the
observance of any such provision may be waived (either generally or in a
particular instance and either retroactively or prospectively) with (but only
with) the written consent of the party to be charged.
SECTION 7.5. Exculpation. Each Purchaser and each member of Subba Mok
LLC acknowledge that they are not relying upon any statements or instruments
made or issued by any person, firm or corporation, other than those contained in
this Agreement in making its decision to invest in the Company.
SECTION 7.6. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
hereby, and supersedes all negotiations, agreements, representations, warranties
and commitments, whether in writing or oral, prior to or contemporaneous with
the date hereof.
SECTION 7.7. Successors and Assigns. Except as otherwise expressly
provided in this Agreement, all of the terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto.
SECTION 7.8. Enforcement.
(a) Remedies at Law or in Equity. If the Company shall default in any of
its obligations under this Agreement or if any representation or warranty made
by or on behalf of the Company in this Agreement or in any certificate, report
or other instrument delivered under or pursuant to any term hereof shall be
untrue or misleading in any material respect as of the date of this Agreement or
as of the Closing or as of the date it was made, furnished or delivered, the
Purchasers may proceed to protect and enforce their rights, including by way of
suit in equity or action at law. In the event the Purchasers bring such an
action against the Company, the prevailing party in such dispute shall be
entitled to recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect to this
Agreement, including, without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
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(b) Remedies Cumulative; Waiver. No remedy referred to herein is
intended to be exclusive, but each shall be cumulative and in addition to any
other remedy referred to above or otherwise available to a party at law or in
equity. No express or implied waiver by the Purchasers of any default shall be a
waiver of any future or subsequent default. The failure or delay of any party in
exercising any rights granted it hereunder shall not constitute a waiver of any
such right and any single or partial exercise of any particular right by a party
shall not exhaust the same or constitute a waiver of any other right provided
herein.
SECTION 7.9. Execution and Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and all such counterparts together shall constitute
one instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it and by the Company.
SECTION 7.10. Governing Law and Severability.
(a) This Agreement shall be governed by the internal laws of the state
of California, without regard to principles of conflicts of law. Each of the
parties hereto hereby submits to the exclusive jurisdiction of the United States
District Court in San Jose, California, for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. Each of the parties hereto waives any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
(b) In the event any provision of this agreement or the application of
any such provision to any party shall be held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this agreement
shall remain in full force and effect.
SECTION 7.11. Headings. The descriptive headings of the Articles and
Sections hereof are inserted for convenience only and do not constitute a part
of this Agreement.
SECTION 7.12. Confidentiality. Each Purchaser agrees that it will keep
confidential and will not disclose, or divulge any confidential, proprietary,
secret or non-public information which such Purchaser may obtain from the
Company and not use such information other than for the benefit of the Company
or in furtherance of such Purchaser's rights as a stockholder of the Company;
provided, that, no such information shall be deemed to be non-public if it (i)
is or becomes generally available to the public other than as a result of a
disclosure by any Purchaser or its respective agents, representatives or
employees; (ii) is or becomes available to any Purchaser on a non-confidential
basis from a source (other than the Company or one of its officers, directors,
agents, representatives or employees) that is not prohibited from disclosing
such information by a legal, contractual or fiduciary obligation; or (iii) was
known to any Purchaser on a non-confidential basis prior to its disclosure to it
by the Company and provided further that any other term of this Agreement to the
contrary notwithstanding, the Company shall not be obligated to disclose any
information, the disclosure of which it believes in good faith would be
detrimental to the Company or its stockholders.
SECTION 7.13. The parties acknowledge that Latham & Watkins has solely
represented the Company in connection with the negotiation, preparation and
execution of this
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Agreement and the transactions described herein.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement by their duly authorized officers as of the date first above written.
IMP, INC.
By: /s/ Ralph Brandi
---------------------------------
Name: Ralph Brandi
Title: Director
SUBBA MOK LLC
By: /s/ Subba Rao Pinamaneni
---------------------------------
Name: Subba Rao Pinamaneni
Title: Managing Member
Number of Shares: 5,208,170
/s/ Manohar Malwa
------------------------------------
Manohar Malwa
Number of Shares: 137,057
/s/ Au Wah
------------------------------------
Au Wah
Number of Shares: 91,371
/s/ Lee Shiu Hon
------------------------------------
Lee Shiu Hon
Number of Shares: 45,686