Exhibit 10.15
STOCK PURCHASE AND SALE AGREEMENT
(Sale by CATC)
This Stock Purchase and Sale Agreement (this "Agreement") is made and
entered into as of this 28th day of September, 2000 by and between Computer
Access Technology Corporation, a California corporation ("CATC"), and Agilent
Technologies, Inc., a Delaware corporation ("Agilent").
RECITALS
A. Agilent wishes to purchase shares of CATC's Common Stock;
B. CATC has authorized the issuance and sale to Agilent of shares of
CATC's Common Stock.
C. CATC and Agilent have entered into a Product Development and
License Agreement dated September 27, 2000 in conjunction with this Agreement
(the "Product Development and License Agreement").
AGREEMENT
NOW, THEREFORE, based on the foregoing and other due and proper
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties to the Agreement agree as follows:
1. Shares. In the event that an initial public offering of Common Stock of
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CATC ("IPO") has not occurred before or on January 31, 2001, CATC agrees to sell
and Agilent agrees to purchase from CATC 184,615 shares of the CATC's Common
Stock for a purchase price per share of $16.25 per share (subject to adjustment
after the date of this Agreement for stock splits, stock dividends, reverse
stock splits, recapitalizations and the like) (the "Shares").
2. Sale of Stock. CATC shall sell and deliver to Purchaser, and Purchaser
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agrees to purchase and accept from CATC, the Shares free and clear of all liens,
encumbrances and restrictions of any kind or nature whatsoever other than
applicable securities laws on the terms and subject to the conditions set forth
in this Agreement, for the total purchase price of $2,999,993.70, such amount
to be paid and delivered to CATC.
3. Closing. Upon April 1, 2001 (the "Closing Date"), the purchase price for
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the Shares shall be delivered to CATC by Agilent by wire transfer pursuant to
CATC's instructions to an account designated not less than five business days
prior to Closing. CATC shall deliver or cause to be delivered to Agilent a
certificate representing the Shares (the "Closing").
4. Representations and Warranties of CATC. CATC hereby represents and warrants
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to, and covenants and agrees with, Agilent that as of the Closing Date:
a. Organization, Good Standing and Qualification. CATC is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of California; is duly
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qualified to transact business and is in good standing in each jurisdiction in
which such qualification is required; and has all required power and authority
necessary to own, lease and operate its property, to carry on its business as
now conducted and presently proposed to be conducted and to carry out the
transactions contemplated by this Agreement
b. Authorization. All corporate action on the part of CATC, its officers,
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directors and stockholders necessary for the authorization, execution and
delivery of this Agreement and all other agreements contemplated hereby to which
CATC is a party, including but not limited to the Investor Rights Agreement, the
performance of all obligations of CATC hereunder and thereunder, and the sale
and issuance of the Shares being sold hereunder has been or will be taken prior
to the Closing. This Agreement and all other agreements contemplated hereby to
which CATC is a party constitute valid and legally binding obligations of CATC,
enforceable in accordance with their respective terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
c. Valid Issuance, The Shares that are being purchased by Agilent
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hereunder, when issued, sold and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and will be free of any liens, encumbrances
and restrictions of any nature whatsoever, other than restrictions on transfer
under this Agreement and the Investors' Rights Agreement and under applicable
state and federal securities laws.
d. Governmental Consents. No consent, approval, order or authorization
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of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of CATC is required
in connection with the consummation of the transactions contemplated by this
Agreement, except for such filings as are required pursuant to applicable
federal and state securities laws and blue sky laws, which filings will be
effected within the required statutory period.
e. Offering. Subject in part to the truth and accuracy of Purchaser's
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representations set forth in Section 4 of this Agreement, the offer, sale and
issuance of the Shares as contemplated by this Agreement are exempt from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
and the qualification or registration requirements of the Law or other
applicable blue sky laws. Neither CATC nor any authorized agent acting on CATC's
behalf will take any action hereafter that would cause the loss of such
exemptions.
f. Disclosure. CATC has fully provided Agilent with all the information
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that Agilent has requested for deciding whether to purchase the Shares and all
information that CATC believes is reasonably necessary to enable Agilent to make
such decision. To the best of CATC's knowledge after due inquiry, neither this
Agreement (including all the exhibits and schedules hereto) nor any other
statements or certificates made or delivered in connection herewith contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements herein or therein not misleading in light of the
circumstances under which they were made. Except as set forth in this Agreement
or the Exhibit attached hereto, there is no fact that CATC has not disclosed to
Agilent in writing and of which any of its
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officers, directors or executive employees is aware and that has had or would
reasonably be expected to have a material adverse effect upon the financial
condition, operating results, assets, customer or supplier relations, employee
relations or business prospects of CATC.
g. Compliance. CATC has full right, authority and power under its
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governing charter documents to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of CATC
pursuant to or as contemplated by this Agreement and to carry out the
transactions contemplated hereby and thereby. The execution, delivery and
performance by CATC of this Agreement and each such other agreement, document
and instrument, and the performance of the transactions contemplated hereby and
thereby, do not and will not: (i) violate, conflict with or result in a default
(whether after the giving of notice, lapse of time, or both) under any contract
or obligation to which CATC is a party or by which it or its assets are bound;
(ii) violate or result in a violation of, or constitute a default under, any
provision of any law, regulation or rule, or any order of; or any restriction
imposed by, any court or other governmental agency applicable to CATC; or (iii)
except for such filings as are required pursuant to applicable federal and state
securities laws and blue sky laws which filings will be effected within the
required statutory periods, require from CATC any notice to, declaration or
filing with, or consent or approval of any governmental authority or other third
party.
5. Representations and Warranties of Agilent.
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a. Suitability of Investment. Agilent represents to CATC that: (i) it has
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such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the investment contemplated by
this Agreement and making an informed investment decision with respect thereto;
(ii) it is able to bear the economic risk of an investment in the Shares and can
afford to sustain a substantial loss on such investment; (iii) it has had,
during the course of this transaction, the opportunity to ask questions and
receive answers from CATC concerning it and this Agreement; (iv) it is an
"accredited investor" as such term is defined in Rule 501 under the Act; and (v)
it is purchasing the Shares for its own account, for investment only and not
with a view to, or any present intention of, effecting a distribution of such
securities or any part thereof except pursuant to a registration or an available
exemption under applicable law. Agilent acknowledges that the Shares have not
been registered under the Act or the securities laws of any state or other
jurisdiction and cannot be disposed of unless the Shares are subsequently
registered under the Act and any applicable state laws or an exemption from such
registration is available.
b. Shares Not Registered. Agilent understands that the Shares have not
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been registered under the Act, that there is no public market for the Shares and
that it must bear the economic risk of investment in CATC for an indefinite
period of time.
c. Authority to Purchase. Agilent has full right, authority and power
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under its governing charter documents to enter into this Agreement and each
agreement, document and instrument to be executed and delivered by or on behalf
of Agilent pursuant to or as contemplated by this Agreement and to carry out the
transactions contemplated hereby and thereby, and the execution, delivery and
performance by Agilent of this Agreement and each such other agreement, document
and instrument have been duly authorized by all necessary action under Aligent's
governing charter documents. This Agreement and each agreement, document and
instrument
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executed and delivered by Agilent pursuant to or as contemplated by this
Agreement constitute, or when executed and delivered will constitute, valid and
binding obligations of Agilent enforceable in accordance with their respective
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies. The execution, delivery and performance by Agilent of this
Agreement and each such other agreement, document and instrument, and the
performance of the transactions contemplated hereby and thereby, do not and will
not: (i) violate, conflict with or result in a default (whether after the giving
of notice, lapse of time, or both) under any contract or obligation to which
Agilent is a party or by which it or its assets are bound; (ii) violate or
result in a violation of, or constitute a default under, any provision of any
law, regulation or rule, or any order of, or any restriction imposed by, any
court or other governmental agency applicable to Agilent; or (iii) require from
Agilent any notice to, declaration or filing with, or consent or approval of any
governmental authority or other third party.
d. Legend. Agilent acknowledges and agrees that the following legend and
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such other legends as counsel for CATC shall reasonably determine are
appropriate shall be typed on each certificate evidencing the Shares:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES OR
BLUE SKY LAWS AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED
EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT
WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE
UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING
TO THE DISPOSITION OF SECURITIES AND (3) IN
ACCORDANCE WITH APPLICABLE STATE SECURITiES AND
BLUE-SKY LAWS.
Upon the request of Agilent, CATC shall remove the legend set
forth above from the certificates evidencing the Shares or issue to such Shares
new certificates therefor free of such legend, if with such request CATC shall
have received a letter from counsel selected by the holder and reasonably
satisfactory to CATC, in form and substance reasonably satisfactory to CATC, to
the effect that the public sale of such Shares is not restricted under the
Securities Act.
6. Conditions of Purchaser's Obligations. Aligent's obligation to purchase and
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pay for the Shares shall be subject to the compliance by CATC with its
agreements herein contained and to the fulfillment to Aligent's satisfaction,
or the waiver by Agilent, on or before and at the Closing Date of the following
conditions;
a. Satisfaction of Conditions. The representations and warranties of CATC
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contained in this Agreement shall be true and correct on and as of the Closing
Date; each of the conditions
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specified in this Section 6 shall have been fulfilled to Agilent's satisfaction
or waived in writing by Agilent; and, on the Closing Date, certificates to such
effect executed by the President and Chief Financial Officer of CATC shall have
been delivered to Agilent.
b. All Proceedings Satisfactory. All corporate and other proceedings
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taken prior to or at the Closing in connection with the transactions
contemplated by this Agreement, and all documents and evidences incident
thereto, shall be reasonably satisfactory in form and substance to Aligent. All
third party and governmental consents, approvals and filings required in
connection with the consummation of the transactions hereunder shall have been
obtained, and shall be reasonably satisfactory in form and substance to Agilent.
c. Investor Rights Agreement. CATC and Agilent shall have entered into
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the Investor Rights Agreement in substantially the form attached hereto as
EXHIBIT A (the "Investor Rights Agreement").
d. No IPO. CATC shall not have registered shares of its Common Stock
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under the Act with the Securities and Exchange Commission in connection with an
initial public offering of such Shares ("IPO") which registration is effective
on or before January 31, 2001.
e. Opinion. Aligent shall have received the opinion of Brobeck, Phleger
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& Harrison LLP as outside Company counsel in substantially the form attached
hereto as EXHIBIT B, which shall include such assumptions, exceptions,
limitations and qualifications as are customary in the industry and are
reasonably satisfactory to Agilent.
f. Product Development and License Agreement. The Product Development and
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License Agreement is in full force and effect and CATC is not in material breach
thereunder.
g. Officers' Certificate. CATC shall have delivered to Agilent (i) a
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certificate, dated the Closing Date and executed by the President of CATC and/or
an executive officer of CATC as appropriate, certifying as to the truth and
accuracy of, and attaching copies of the certificate or articles of
incorporation, bylaws and all board resolutions adopted in connection with this
Agreement and the Investor Rights Agreement of CATC in a form reasonably
satisfactory to Agilent.
7. Conditions of CATC's Obligations. CATC's obligation to sell the Shares
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shall be subject to the compliance by Agilent with its agreements herein
contained and to the fulfillment to CATC's satisfaction or the waiver by CATC,
on or before and at the Closing Date of the following conditions:
a. Satisfaction of Conditions. The representations and warranties of
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Agilent contained in this Agreement shall be true and correct on and as of the
Closing Date; each of the conditions specified in this Section 7 shall have been
fulfilled to CATC's satisfaction or waived in writing by CATC; and, on the
Closing Date, the purchase price for the Shares shall have been delivered to
CATC simultaneous with delivery of the certificates evidencing the Shares to
Aligent.
b. All Proceedings Satisfactory. All corporate and other proceedings
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taken prior to or at the Closing in connection with the transactions
contemplated by this Agreement, and all documents and evidences incident
thereto, shall be reasonably satisfactory in form and substance
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to CATC. All third party and governmental consents, approvals and filings
required in connection with the consummation of the transactions hereunder shall
have been obtained, and shall be reasonably satisfactory in form and substance
to CATC.
c. No IPO. CATC shall not have conducted an IPO on or before January 31,
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2001.
d. Product Development and License Agreement. The Product Development and
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License Agreement is in full force and effect and Agilent is not in material
breach thereunder.
e. Lock-Up Agreement. Agilent shall have entered into and delivered to the
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Company the Lock-Up Agreement in substantially the form attached hereto as
Exhibit C (the "Lock-Up Agreement").
8. Put Right. In the event that (a) CATC terminates that Product Development
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and License Agreement for any reason other than Agilent's material breach
thereunder, or (b) Agilent terminates the License Agreement in accordance with
its terms as a result of CATC's material breach thereunder, Agilent shall have
the right to require CATC, by written notice to CATC given within ninety (90)
days of such termination, to repurchase the Shares for their original purchase
price of $16.25 per Share (subject to adjustment after the date of this
Agreement for stock splits, stock dividends, reverse stock splits,
recapitalizations and the like). Subject to applicable law, CATC shall
consummate such repurchase with a cash payment to Agilent within thirty (30)
days of receiving Agilent's notice thereof.
9. Termination. In the event that the stock purchase by Agilent from certain
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shareholders of CATC of shares of common stock of CATC as contemplated by that
certain Stock Purchase and Sale Agreement entered into by Agilent and those
shareholders of even date herewith is consummated, then this Agreement shall be
immediately terminated and shall be of no further force or effect.
10. Miscellaneous
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a. Binding Effect: Governing Law. This Agreement shall be binding upon and
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inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement shall be governed and interpreted under the
laws of the State of California.
b. Indemnification. CATC agrees to indemnify and hold harmless Agilent
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against any investigations, proceedings, claims or actions and for any expenses,
damages, liabilities or losses (joint or several) arising out of such
investigations, proceedings, claims or actions that arise out of or are based
upon any breach of any representation, warranty, agreement or covenant of CATC
contained herein. Upon written request, CATC agrees to reimburse Agilent for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such investigations, proceedings, claims or actions, as such
expenses or other costs are incurred. Agilent may select its own counsel.
c. Mediation and Alternative Dispute Resolution. To the extent that any
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misunderstanding or dispute cannot be resolved agreeably in a friendly manner
between CATC and Agilent, the dispute will be mediated by a mutually-acceptable
mediator to be chosen by CATC and Agilent within forty-five (45) days after
written notice by one of the parties
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demanding mediation. No party may unreasonably withhold consent to the selection
of a mediator, however, by mutual agreement CATC and Agilent may postpone
mediation until each has completed specified but limited discovery with respect
to a dispute. The parties may also agree to attempt some other form of
alternative dispute resolution ("ADR") in lieu of mediation including by way
of example and without limitation neutral fact-finding or mini-trial.
Any dispute which the parties cannot resolve through good faith
negotiation, mediation or other form of ADR within six months of the date of the
initial demand for it by one of the parties may then be submitted to the courts
for resolution. The use of any ADR procedures will not be construed under the
doctrines of laches, waiver or estoppel to adversely effect the rights of either
party. Nothing in this Section 9(c) will prevent any party from resorting to
judicial proceedings if (i) good faith efforts to resolve the dispute under
these procedures have been unsuccessful, or (ii) interim relief from a court is
necessary to prevent serious and irreparable injury to one party or others.
Agilent and CATC shall bear its own costs of mediation or ADR.
d. Nondisclosure. Neither Agilent nor CATC shall issue any press release
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or make any other public disclosure (including disclosure to public officials)
with respect to this Agreement or the transactions contemplated by this
Agreement, except as required by law, without the prior approval of the other
party, which approval shall not be unreasonably withheld; provided, that either
party may, if considered necessary by its counsel to fulfill its obligations as
a publicly traded corporation, respond to inquiries and issue such releases as
it considers necessary and appropriate, if it notifies the other party in
advance of the substance of such proposed response or proposed release and gives
such party reasonable opportunity for comment prior to such response or release.
e. Notice. Unless otherwise provided, any notice under this Agreement
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shall be given in writing and shall be deemed effectively given (a) upon
personal delivery to the party to be notified, (b) upon confirmation of receipt
by fax by the party to be notified, (c) one business day after deposit with a
reputable U.S. domestic overnight courier, prepaid for overnight delivery and
addressed as set forth below, or (d) three days after deposit with the United
States Post Office, postage prepaid, registered or certified with return receipt
requested, or (e) two business days after deposit with an overseas urgent
delivery company, and addressed to the party to be notified at the address
indicated below, or at such other address as such party may designate by 10
days' advance written notice to the other party given in the foregoing manner.
If to Agilent,
Agilent Technologies, Inc.
Herrenberger Str. 130 in D-71034
Boeblingen, Germany
Attn: General Manager
Fax: 49 7031 142999
with a copy to:
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Agilent Technologies, Inc.
395 Page Mill Road
Palo Alto, CA 94306
Attention: General Counsel
Fax: (650) 752-5742
If to CATC:.
Computer Access Technology Corporation
2403 Walsh Avenue
Santa Clara, CA 95051
Attn: President
Fax: (408) 727-6622
With a copy to:
Brobeck, Phleger & Harrison LLP
One Market Plaza, Spear Street Tower
San Francisco, CA 94105
Attn: Donald J. Bouey, Esq.
Fax: (415)442-1075
f. Counterparts. This Agreement may be executed simultaneously in any
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number of counterparts, including counterparts transmitted by telecopier or
telefax, each of which when so executed and delivered shall be taken to be an
original; but such counterparts shall together constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
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PURCHASER:
AGILENT TECHNOLOGIES, INC.
By: /s/ Byron Anderson
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Name: Byron Anderson
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Its: ___________________________________
SELLER:
COMPUTER ACCESS TECHNOLOGY CORPORATION
By:_____________________________________
Name: _________________________________
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PURCHASER:
AGILENT TECHNOLOGIES, INC.
By: ______________________________________
Name:_____________________________________
Its: _____________________________________
SELLER:
COMPUTER ACCESS TECHNOLOGY CORPORATION
By: /s/ Dan Wilnai
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Name: Dan Wilnai
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