EXHIBIT 10.18
STOCK PURCHASE AND SALE AGREEMENT
This Stock Purchase and Sale Agreement (this "Agreement") is made
and entered into as of this 26th day of September, 2000 by and between
Corporate Sellers and Individual Sellers as set forth on EXHIBIT A (with
those listed on Exhibit A sometimes referred to individually herein as
"Seller" or collectively as "Sellers"), and Toyo Corporation ("Toyo")
(sometimes referred to herein as "Purchaser").
WHEREAS, Sellers currently hold an aggregate of 11,326,564 shares
(the "Aggregate Shares") of the Common Stock of Computer Access Technology
Corporation (the "Company"); and
WHEREAS, Sellers intend to sell certain of the Aggregate Shares,
and the Purchaser intends to buy a portion of certain Aggregate Shares
being sold, pursuant to the terms and conditions of this 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. Sellers agree to sell an aggregate number of shares of the
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Company's Common Stock to be determined by dividing (1) the purchase price
per share of Common Stock paid to the Company by the public in the Initial
Public Offering of Common Stock of the Company ("IPO") or, in the event
that the IPO has not occurred by January 31, 2001, $16.25 per share
(subject to adjustment after the effective date of this Agreement for stock
splits, stock dividends, reverse stock splits, recapitalizations and the
like) into (ii) $2 million (the "Shares"). The number of Shares to be
individually sold by each of the Sellers and delivered to and paid for by
Purchaser shall be in proportion to Sellers' respective percentages of
ownership of the Aggregate Shares.
2. Sale of Stock. Upon execution of this Agreement, the Sellers shall
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sell and deliver to Purchaser, and Purchaser agrees to purchase and accept
from the Sellers, the Shares free and clear of all liens, encumbrances and
restrictions of any kind or nature whatsoever other than applicable
securities laws and the Lock-Up Agreement described in Section 7 below, on
the terms and subject to the conditions set forth in this Agreement, for
the total purchase price of $2 million, such amount to be paid and
delivered to the Sellers in proportion to their respective percentages of
ownership of the Aggregate Shares.
3. Closing. Upon the effective date of the IPO (the "Closing Date") the
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purchase price for the Shares shall be delivered to each respective Seller
by Purchaser in the form of a certified or bank cashier's check payable to
or upon the order of such Seller, or by wire transfer pursuant to Sellers'
respective instructions. Each Seller shall deliver or cause to be delivered
to the Purchaser a certificate or certificates representing the Shares
being sold by such Seller hereunder, duly endorsed for transfer, or
accompanied by duly executed assignments separate from certificate,
transferring to Purchaser good and marketable title to the Shares, free and
clear of all liens, encumbrances and restrictions of any kind or nature
whatsoever other than applicable securities laws and the Lock-Up Agreement
described in Section 7 below (the "C1osing").
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4. Representations and Warranties of Seller. Each Seller hereby
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represents and warrants to, and covenants and agrees with, Purchaser that
as of the Closing Date:
a. Ownership of Shares. Such Seller owns of record and beneficially
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all of the Seller's Shares and has good and marketable title to such
Shares, free and clear of all liens, encumbrances and restrictions of any
kind or nature whatsoever other than applicable securities laws.
b. Delivery of Good Title. Upon delivery of the Shares and payment
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of the purchase price therefor pursuant to this Agreement, Purchaser will
have good and marketable title to the Shares, free and clear of all liens,
encumbrances and restrictions of any kind or nature whatsoever, other than
applicable securities laws and the Lock-Up Agreement described in Section 7
below.
c. Organization, Good Standing and Qualification of Seller Philips.
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Each Corporate Seller represents that it: (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware; (ii) is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is required;
and (iii) has all required power and authority necessary to own 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.
d. Authorization. All corporate action on the part of each Corporate
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Seller, its officers, directors and stockholders, trust actions on the part
of each Trust Seller and individual actions of each Individual Seller,
necessary for the authorization, execution and delivery of this Agreement
and all other agreements contemplated hereby to which Seller is a party,
the performance of all obligations of Seller 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 Seller is a party constitute valid and legally
binding obligations of Seller, 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.
e. Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state or local governmental authority on the
part of any Seller is required in connection with the consummation of the
transactions contemplated by this Agreement.
f. Offering. Subject in part to the truth and accuracy of
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Purchaser's 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 all applicable blue sky laws. Neither the Sellers nor any
authorized agent acting on either Seller's behalf will take any action
hereafter that would cause the loss of such exemptions.
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g. Disclosure. Each Seller has fully provided the Purchaser with all
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the information that the Purchaser has requested for deciding whether to
purchase the Shares and all information that each Seller believes is
reasonably necessary to enable the Purchaser to make such decision. To the
best of each Seller'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 Schedules or Exhibits attached hereto, there is no
fact that any Seller has not disclosed to the Purchaser in writing and, in
the case of each Corporate Seller, of which any of its 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 the Company.
5. Representations and Warranties of the Purchaser.
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a. Suitability of Investment. Purchaser represents to the Sellers
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that: (i) it has 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 the Seller
concerning the Company and this Agreement; (iv) it is an "accredited
investor" as such term is defined in Rule 501 under the Securities Act of
1933, as amended (the "Securities 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. Purchaser acknowledges that the Shares have
not been registered under the Securities Act or the securities laws of any
state or other jurisdiction and cannot be disposed of unless the Shares are
subsequently registered under the Securities Act and any applicable state
laws or an exemption from such registration is available.
b. Shares Not Registered. The Purchaser understands that the Shares
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have not been registered under the Securities Act, that there is no public
market for the Shares and that it must bear the economic risk of investment
in the Company for an indefinite period of time.
c. Authority to Purchases. Purchaser has full right, authority and
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power 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 the Purchaser 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 the Purchaser
of this Agreement and each such other agreement, document and instrument
have been duly authorized by all necessary action under Purchaser's
governing charter documents. This Agreement and each agreement, document
and instrument executed and delivered by the Purchaser pursuant to or as
contemplated by this Agreement constitute, or when executed and delivered
will constitute, valid and binding obligations of Purchaser enforceable in
accordance with their respective terms. The execution, delivery and
performance by the Purchaser of this Agreement and each such other
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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 the
Purchaser 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 the
Purchaser; or (iii) require from the Purchaser any notice to, declaration
or filing with, or consent or approval of any governmental authority or
other third party.
d. Legend. Purchaser acknowledges and agrees that the following
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legend and such other legends as counsel for the Company shall reasonably
determine are appropriate shall be typed on each certificate evidencing
any of the securities issued hereunder held at any time by the Purchaser:
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.
6. Conditions of Purchaser's Obligations. Purchaser's obligation to
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purchase and pay for the Shares to be purchased by it shall be subject to
the compliance by each Seller with its agreements herein contained and to
the fulfillment to the Purchaser's satisfaction, or the waiver by the
Purchaser, on or before and at the Closing Date of the following
conditions:
a. Satisfaction of Condition. The representations and warranties of
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each Seller contained in this Agreement shall be true and correct on and as
of the Closing Date; each of the conditions specified in this Section 6
shall have been fulfilled to the Purchaser's satisfaction or waived in
writing by the Purchaser; and, on the Closing Date, certificates to such
effect executed by the President and Chief Financial Officer of each
Corporate Seller, Trust Seller and each Individual Seller, as applicable,
shall have been delivered to the Purchaser.
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 the
Purchaser. 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 the Purchaser.
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c. Investor Rights Agreement. The Company and Purchaser shall have
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entered into the investor Rights Agreement in substantially the form
attached hereto as EXHIBIT B (the "Investor Rights Agreement").
7. Conditions of Sellers' Obligations. Each Seller's obligation to sell
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the Shares to be sold by it shall be subject to the compliance by Purchaser
with its agreements herein contained and to the fulfillment to the Seller's
satisfaction, or the waiver by the Purchaser, 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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Purchaser 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 the Seller's satisfaction or waived in writing
by the Seller; and, on the Closing Date, the purchase price for the
Seller's Shares shall have been delivered to the Seller.
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 the
Purchaser. 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 the Seller.
c. Lock-Up Agreement. The Purchaser shall have entered into and
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delivered to the Company the Lock-Up Agreement in substantially the form
attached hereto as EXHIBIT C (the "Lock-Up Agreement").
8. Miscellaneous
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a. Binding Effect; Governing Law. This Agreement shall be binding
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upon and 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. Each Seller agrees to indemnify and hold
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harmless Purchaser and the Purchaser's general partners, if any
(collectively, the "Indemnitees"), 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 the Seller contained
herein. Upon written request, each Seller agrees to reimburse the
Indemnitee 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. Each Indemnitee may select its own counsel.
c. Mediation and Alternative Dispute Resolution. To the extent that
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any misunderstanding or dispute cannot be resolved agreeably in a friendly
manner between the Purchaser and any Sellers, the dispute will be mediated
by a mutually-acceptable mediator to be chosen by the applicable Seller(s)
and the Purchaser within forty-five (45) days after written notice by one
of the parties demanding mediation. No party may unreasonably withhold
consent to the selection of a mediator, however, by mutual agreement the
applicable Seller(s) and the
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Purchaser 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 7(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.
Each of Purchaser and the applicable Seller(s) shall bear its
own costs of mediation or ADR.
d. Nondisclosure. Neither the Purchaser nor any Seller shall issue
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any press release 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
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Agreement 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 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 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 the Purchaser,
Toyo Corporation
_______________________
_______________________
Attn: _________________
Fax: _________________
with a copy to:
_______________________
_______________________
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___________________
Attention: ________
If to the Sellers, at the respective addresses set forth on
Exhibit A attached hereto.
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.
PURCHASER:
TOYO CORPORATION.
By:___________________________
Name:_________________________
Title: _______________________
SELLERS:
THE WILNAI GRAT
By: /s/ Dan Wilnai
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Dan Wilnai, Trustee
7
CA 95037 -3404, USA
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TOYO US Liaison Office
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Attention: A. William Berkman
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If to the Sellers, at the respective addresses set forth on
Exhibit A attached hereto.
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.
PURCHASER:
TOYO CORPORATION.
By: /s/ Hiroji Kamei
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Name: Hiroji Kamei
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Title: Director / Corporate Secretary
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SELLERS:
THE WILNAI GRAT
By:_____________________________________
Dan Wilnai, Trustee
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THE TZARNOTZKY GRAT THE WILNAI FAMILY TRUST DATED
NOVEMBER 12, 1997
By: _____________________________ By: /s/ Dan Wilnai
Peretz Tzarnotzky, Trustee -------------------------------------
Dan Wilnai, Trustee
______________________________ By: /s/ Sarah Wilnai
Peretz Tzarnotzky ------------------------------------
Sara Wilnai, Trustee
______________________________ PHILIPS SEMICONDUCTORS
Guy Wilnai
By: ____________________________________
______________________________ Name: __________________________________
Ilanit Wilnai Title:__________________________________
______________________________
Iris Wilnai
______________________________
Yocheved Ventura
______________________________
Rivka Weingarten
______________________________
Zeev Weingarten
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THE TZARNOTZKY GRAT THE WILNAI FAMILY TRUST DATED
NOVEMBER 12, 1997
By: __________________________________ By:_____________________________________
Peretz Tzarnotzky, Trustee Dan Wilnai, Trustee
__________________________________ By: ____________________________________
Peretz Tzarnotzky Sara Wilnai, Trustee
__________________________________ PHILIPS SEMICONDUCTORS
Guy Wilnai
By: ____________________________________
__________________________________ Name: __________________________________
Ilanit Wilnai Title:__________________________________
__________________________________
Iris Wilnai
/s/ Ventura Yocheved [ILLEGIBLE]^^
----------------------------------
Yocheved Ventura
/s/ Rivka Weingarten
----------------------------------
Rivka Weingarten
/s/ Zeev Weingarten
----------------------------------
Zeev Weingarten
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THE TZARNOTZKY GRAT THE WILNAI FAMILY TRUST DATED
NOVEMBER 12, 1997
By: ______________________________ By: ____________________________________
Peretz Tzarnotzky, Trustee Dan Wilnai, Trustee
______________________________ By: ____________________________________
Peretz Tzarnotzky Sara Wilnai, Trustee
/s/ Guy Wilnai PHILIPS SEMICONDUCTORS
------------------------------
Guy Wilnai
By: ____________________________________
/s/ Ilanit Wilnai Name: __________________________________
------------------------------
Ilanit Wilnai Title:__________________________________
______________________________
Iris Wilnai
______________________________
Yocheved Ventura
______________________________
Rivka Weingarten
______________________________
Zeev Weingarten
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THE TZARNOTZKY GRAT THE WILNAI FAMILY TRUST DATED
NOVEMBER 12, 1997
/s/ PERETZ TZARNOTZKY
By: _____________________________ By: ____________________________________
Peretz Tzarnotzky, Trustee Dan Wilnai, Trustee
/s/ PERETZ TZARNOTZKY
______________________________ By: ____________________________________
Peretz Tzarnotzky Sara Wilnai, Trustee
______________________________ PHILIPS SEMICONDUCTORS
Guy Wilnai
/s/ PHILIP B POLLOK
By: ____________________________________
______________________________
Ilanit Wilnai Philip B Pollok
Name: __________________________________
Snr VP & GM
Title:__________________________________
/s/ Iris Wilnai
------------------------------
Iris Wilnai
______________________________
Yocheved Ventura
______________________________
Rivka Weingarten
______________________________
Zeev Weingarten
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