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EXHIBIT 99.1
NEITHER THIS CONVERTIBLE DEBENTURE NOR ANY SHARES OF COMMON STOCK ISSUED UPON
CONVERSION HEREOF HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND SUCH
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR
AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO IMP, INC. THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
IMP, INC.
CONVERTIBLE DEBENTURE DUE MAY 28, 2001
$1,200,000.00 November 28, 2000
San Jose, California
FOR VALUE RECEIVED, IMP, INC., a Delaware corporation ("Maker"),
unconditionally promises to pay to TEAMASIA SEMICONDUCTORS (INDIA) LTD., a
private limited company formed under the laws of the Republic of India with
registered offices located at 3-4-526/15 Lingampally, Hyderabad 500 027, India
("Payee"), in the manner and at the place hereinafter provided, the principal
amount of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000.00) on May 28,
2001 (the "Maturity Date"), subject to the provisions of the Loan and Security
Agreement, dated as of April 30, 1999 (the "Loan and Security Agreement"), by
and between Maker and The CIT Group/Credit Finance, Inc.
Capitalized terms used and not otherwise defined herein have the
meanings set forth in Section 8 hereof.
Maker shall not be required to pay interest on the unpaid
principal amount hereof, provided that any principal amount not paid when due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (both before as well as after judgment), shall bear interest
payable upon demand at a rate of nine percent (9.0%) per annum. All computations
of interest shall be made by Payee on the basis of a 365 day year, for the
actual number of days elapsed in the relevant period (including the first day
but excluding the last day). In no event shall the interest rate payable on this
Convertible Debenture, if any, exceed the maximum rate of interest permitted to
be charged under applicable law. All payments in connection with this
Convertible Debenture shall be subject to applicable withholding.
1. PAYMENTS. All payments of principal and interest, if any, in respect
of this Convertible Debenture shall be made in lawful money of the United States
of America in same day funds to such account as Payee may direct.
Notwithstanding the foregoing, at the election of Payee in its sole discretion
all payments of principal and interest, if any, in respect of this Convertible
Debenture shall be made through the issuance to Payee or, subject to the
provisions of Section 10, its assignee of 685,714 shares (the "Shares") of
Common Stock, subject to adjustment for stock splits, stock dividends and
similar transactions. In the event that Payee elects to receive the Shares, the
issuance of Shares shall constitute repayment in full of this Convertible
Debenture and all obligations of Maker hereunder. Whenever any payment on this
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Convertible Debenture is stated to be due on a day that is not a Business Day,
such payment shall instead be made on the next Business Day. In the event that
on the Maturity Date Maker is prohibited by the provisions of the Loan and
Security Agreement from repaying the principal amount of this Convertible
Debenture or, at the election of Payee, issuing shares of Common Stock to Payee
in lieu thereof, the Maturity Date shall be deferred until the earlier of such
time as (a) the requisite consent under the Loan and Security Agreement may be
obtained (which consent Maker shall use commercially reasonable best efforts to
obtain) or (b) the Loan and Security Agreement has been terminated.
2. COVENANTS. Unless waived by Payee in writing, Maker covenants and
agrees that until this Convertible Debenture is paid in full it will:
(a) promptly upon request provide to Payee after their becoming
available:
(i) copies of all financial statements, stockholder reports
and proxy statements which Maker shall have sent to its stockholders
generally; and
(ii) copies of all information, documents and other
reports, if any, that Maker is required to file with the Commission under
Section 13 or Section 15(d) of the Exchange Act;
(b) promptly provide to Payee all financial and operational
information with respect to Maker as Payee may reasonably request;
(c) within one (1) Business Day after becoming aware of the
occurrence of an Event of Default (as defined below) or an event, act or
condition that, with notice or lapse of time or both, would constitute an Event
of Default, provide Payee with a certificate of the chief executive officer or
chief financial officer of Maker specifying the nature thereof and Maker's
proposed response thereto;
(d) preserve and maintain its corporate existence and all of its
rights, privileges, property and franchises necessary or desirable in the normal
conduct of its business, and conduct its business in an orderly, efficient and
regular manner;
(e) comply with the requirements of all applicable laws, rules,
regulations, and orders of any governmental authority, a breach of which would
materially adversely affect the consolidated financial condition of Maker;
(f) not declare or pay any dividends or make any distribution to
holders of its Common Stock or purchase, redeem or otherwise acquire or retire
for value any of its Common Stock or any warrants, rights or options to purchase
or acquire any shares of its Common Stock, if at the time of such action an
Event of Default has occurred and is continuing or would exist immediately after
giving effect to such action;
(g) not merge or consolidate with any other Person, or sell, lease
or otherwise dispose of all or any substantial part of its property or assets to
any other Person outside the ordinary course of business;
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(h) operate its business in the usual and ordinary course and in a
manner which is consistent with the past practice established by Maker.
3. REPRESENTATIONS AND WARRANTIES OF MAKER. Maker hereby represents and
warrants to Payee that:
(a) Maker is a duly organized and validly existing corporation in
good standing under the laws of the State of Delaware and has the corporate
power and authority to own and operate its properties, to transact the business
in which it is now engaged and to execute and deliver this Convertible
Debenture.
(b) This Convertible Debenture constitutes the duly authorized,
legally valid and binding obligation of Maker, enforceable against Maker 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.
(c) All consents and grants of approval required to have been
granted by any Person in connection with the execution, delivery and performance
of this Convertible Debenture have been granted.
(d) The execution, delivery and performance by Maker of this
Convertible Debenture do not and will not (i) violate any law, governmental rule
or regulation, court order or agreement to which it is subject or by which its
properties are bound or the charter documents or by-laws of Maker or (ii) result
in the creation of any lien or other encumbrance with respect to the property of
Maker.
(e) There is no action, suit, proceeding or governmental
investigation pending or, to the knowledge of Maker, threatened against Maker or
any of its subsidiaries or any of their respective assets which, if adversely
determined, would have a material adverse effect on the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Maker and
its subsidiaries, taken as a whole, or the ability of Maker to comply with its
obligations hereunder.
(f) Since September 24, 2000 there has been no material adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Maker and its subsidiaries, taken as a whole.
(g) Maker is not in default under any provisions of its charter
documents or bylaws or under any provisions of any franchise, contract,
agreement, lease or other instrument to which it is a party or by which it or
its property is bound or in violation of any law, judgment, decree or
governmental order, rule or regulation, which default or violation could affect
adversely in any material manner the business, assets or financial condition of
Maker.
(h) The proceeds of the loan evidenced by this Convertible
Debenture shall be used by Maker solely for working capital and other general
corporate purposes.
(i) Maker has reserved 685,714 shares of Common Stock for issuance
pursuant to the provisions of this Convertible Debenture.
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(j) This Convertible Debenture and the transactions contemplated
hereby have been approved by (1) a committee (the "Independent Committee") of
the independent member of Maker's Board of Directors and (2) upon the
recommendation of the Independent Committee, Maker's Board of Directors
unanimously.
4. REPRESENTATIONS AND WARRANTIES OF PAYEE. Payee and, if applicable,
Payee's assignee hereby represent and warrant to Maker that:
(a) Payee is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its organization and has the
power and authority to execute and deliver this Convertible Debenture.
(b) This Convertible Debenture constitutes the duly authorized,
legally valid and binding obligation of Payee, enforceable against Payee 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.
(c) Any Shares acquired by Payee will be acquired for investment
for the Payee's own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and Payee has no present
intention of selling, granting any participation in, or otherwise distributing
the same.
(d) Payee does not presently have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares.
(e) Payee has not been formed for the specific purpose of
acquiring the Shares.
(f) Payee has had an opportunity to discuss the Maker's business,
management and financial affairs with Maker's management and has had an
opportunity to review the Maker's facilities. Payee understands that such
discussions were intended to describe the aspects of the Maker's business which
it believes to be material.
(g) Payee understands that the Shares have not been, and will not
be, registered under the Securities Act, by reason of a specific exemption from
the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
Payee's representations as expressed herein. Payee understands that the Shares
are "restricted securities" under applicable U.S. federal and state securities
laws and that, pursuant to these laws, Payee must hold the Shares indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. Payee further acknowledges that if an
exemption from registration or qualification is available, it may be conditioned
on various requirements including, but not limited to, the time and manner of
sale, the holding period for the Shares, and on requirements relating to Maker
which are outside of Payee's control, and which Maker is under no obligation and
may not be able to satisfy.
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(h) Payee understands that the Shares, and any securities issued
in respect of or exchange for the Shares, may bear, in addition to any legend
required by the Blue Sky laws of any state to the extent such laws are
applicable, the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933."
(i) Payee is an accredited investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
(j) If Payee is not a United States person (as defined by Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended), Payee hereby
represents that it has satisfied itself as to the full observance of the laws of
its jurisdiction in connection with any invitation to subscribe for the Shares
or any use of this Convertible Debenture, including (i) the legal requirements
within its jurisdiction for the purchase of the Stock, (ii) any foreign exchange
restrictions applicable to such purchase, (iii) any governmental or other
consents that may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale, or transfer of the Shares. Payee's continued beneficial ownership of the
Shares will not violate any applicable securities or other laws of Payee's
jurisdiction.
(k) Payee acknowledges that its rights under this Convertible
Debenture are subject to the provisions of the Loan and Security Agreement.
5. CONDITIONS TO EFFECTIVENESS. This Convertible Debenture shall become
effective upon the receipt by Payee of an executed copy of this Convertible
Debenture (the date of such receipt being referred to herein as the "Effective
Date"):
6. EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an "Event of Default":
(a) failure of Maker to pay any principal under this Convertible
Debenture when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, or failure of Maker to pay any
other amount due under this Convertible Debenture within five Business Days
after the date due;
(b) failure of Maker to pay, or the default in the payment of, any
amount due under or in respect of any promissory note, indenture or other
agreement or instrument relating to any indebtedness owing by Maker, to which
Maker is a party or by which Maker or any of its property is bound under which
amounts outstanding exceed $1,000,000 beyond any grace period provided; or the
occurrence of any other event or circumstance that would permit acceleration of
such indebtedness;
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(c) failure of Maker to perform or observe any other term,
covenant or agreement to be performed or observed by it pursuant to this
Convertible Debenture which remains uncured for five days after written notice;
(d) any representation or warranty made by Maker to Payee in
connection with this Convertible Debenture shall prove to have been false in any
material respect when made;
(e) any order, judgment or decree shall be entered against Maker
decreeing the dissolution or split-up of Maker;
(f) suspension of the usual business activities of Maker or the
complete or partial liquidation of Maker's business;
(g) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Maker or any of its respective
subsidiaries in an involuntary case under Title 11 of the United States Code
entitled "Bankruptcy" (as now and hereinafter in effect, or any successor
thereto, the "Bankruptcy Code") or any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case shall be commenced against
Maker or any of its respective subsidiaries under any applicable bankruptcy,
insolvency or any other similar law now or hereafter in effect; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Maker or any of its respective subsidiaries or over all or a
substantial part of its property shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other custodian of Maker or any
of its respective subsidiaries for all or a substantial part of its property
shall have occurred; or a warrant of attachment, execution or similar process
shall have been issued against any substantial part of the property of Maker or
any of its respective subsidiaries, and, in the case of any event described in
this clause (ii), such event shall have continued for 90 days unless dismissed,
bonded or discharged;
(h) an order for relief shall be entered with respect to Maker or
any of its respective subsidiaries or Maker or any or its respective
subsidiaries shall commence a voluntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; or Maker or any of its respective subsidiaries shall make an
assignment for the benefit of creditors; or Maker or any of its respective
subsidiaries shall be unable or fail, or shall admit in writing its inability,
to pay its debts as such debts become due; or the Board of Directors of Maker or
any of its respective subsidiaries (or any committee thereof) shall adopt any
resolution or otherwise authorize action to approve any of the foregoing; or
(i) Maker shall challenge, or institute any proceedings to
challenge, the validity, binding effect or enforceability of this Convertible
Debenture or any endorsement of this Convertible Debenture or any other
obligation to Payee
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7. REMEDIES. Upon the occurrence of any Event of Default specified in
Section 6(g) or 6(h) above, the principal amount of this Convertible Debenture
shall become immediately due and payable, without presentment, demand, notice,
protest or other requirements of any kind (all of which are hereby expressly
waived by Maker). Upon the occurrence and during the continuance of any other
Event of Default Payee may, by written notice to Maker, declare the principal
amount of this Convertible Debenture to be due and payable, and the principal
amount of this Convertible Debenture shall thereupon immediately become due and
payable without presentment, further notice, protest or other requirements of
any kind (all of which are hereby expressly waived by Maker). In addition to the
foregoing, upon the occurrence of any Event of Default specified in Section
6(a), Payee may, by written notice to Maker, set off against the principal
amount of this Convertible Debenture any invoiced amount payable by Payee to
Maker relating to the purchase by Payee of wafers manufactured by Maker.
8. DEFINITIONS. The following terms used in this Convertible Debenture
shall have the following meanings (and any of such terms may, unless the context
otherwise requires, be used in the singular or the plural depending on the
reference):
"Business Day" means any day other than a Saturday, Sunday or
legal holiday under the laws of the State of California or any other day on
which banking institutions located in such state are authorized or required by
law or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means Maker's common stock, par value $0.01 per
share.
"December Stock Purchase Agreement" means the Phase 2 Stock
Purchase Agreement, dated as of December 15, 1999, by and between Maker and
Teamasia Semiconductors PTE Ltd., a Singapore corporation.
"Event of Default" means any of the events set forth in Section 6.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means any individual, partnership, joint venture, firm,
corporation, association, bank, trust or other enterprise, whether or not a
legal entity, or any government or political subdivision or any agency,
department or instrumentality thereof.
"Securities Act" means the United States Securities Act of 1933,
as amended.
9. REGISTRATION RIGHTS
(a) Piggy-Back Registrations. If at any time Maker 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, it shall send to Payee written notice of such determination
and, if within fifteen (15) days after receipt of such notice, Payee shall so
request in writing, Maker shall use its diligent efforts to include in such
registration statement all or any part of the Registrable Shares (as defined
below) Payee requests to be registered, except that if, in connection with any
offering involving an underwriting of Common Stock to be issued by Maker, the
managing underwriter shall impose a limitation on the number
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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 Maker 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 Payee has
requested inclusion hereunder. For the purposes of this Section 9, "Registrable
Shares" shall mean and include (i) any shares of Common Stock held by Payee and
its affiliates as of the date of this Convertible Debenture and (ii) any shares
of Common Stock issued to Payee and its affiliates pursuant to the provisions of
this Convertible Debenture; 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.
(b) Registrations on Form S-1 or Form S-3. In addition to the
rights provided Payee in Section 9(a) above, if the registration of Registrable
Shares under the Securities Act can be effected on Form S-1 or Form S-3 (or any
equivalent successor form promulgated by the Commission), then Maker shall
provide Payee with the following rights:
(i) Upon the written request of Payee, Maker shall so
notify Payee, and then shall, as expeditiously as possible, 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 Payee shall specify; provided, however, Maker shall
not be required to effect a registration pursuant to this Section 9(b)
unless the market value of the Registrable Shares to be sold by Payee in
any such registration shall be at least $2,000,000 at the time of filing
such registration statement, and further provided that Maker shall not be
required to effect (w) any registration prior to December 15, 2000; (x) a
registration during the three (3) months thereafter pursuant to this
Section 9(b) unless the Registrable Shares are less than twenty percent
(20%) of the shares of Common Stock purchased by affiliates of Payee
pursuant to the December Stock Purchase Agreement (the "Purchased
Shares"); (y) a registration during each three (3) month period
thereafter pursuant to this Section 9(b) unless the Registrable Shares
are less than twenty percent (20%) of the then-remaining Purchased Shares
and (z) more than five registrations in the aggregate pursuant to this
Section 9(b).
(ii) In the event that, in a registration under this 9(b)
which is effected through an underwriter, the underwriter imposes a
limitation on the number of Registrable Shares which may be included in
the registration statement in order to effect an orderly public
distribution, then Maker shall exclude from such registration statement,
first, all shares which are not Registrable Shares, and second,
Registrable Shares which are requested to be included pursuant to Section
9(a).
(c) The parties agree that the provisions of this Section 9 solely
restate, and shall not amend, modify or supplement, the rights of Payee and its
affiliates pursuant to the December Stock Purchase Agreement.
10. MISCELLANEOUS.
(a) All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex, telecopier, or cable
communication) and mailed,
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telegraphed, telexed, telecopied, cabled or delivered as follows: if to Maker,
at its address specified opposite its signature below with a copy to Latham &
Watkins, 135 Commonwealth Drive, Menlo Park, California 94025, Attention:
William Davisson; and if to Payee, at the address set forth on the signature
page hereto; or in each case at such other address as shall be designated by
Payee or Maker. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled or sent by over-night courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier.
(b) Each of Maker and Payee shall pay its own respective legal,
accounting, advisory and other fees, and all out-of-pocket expenses incurred in
connection with the transactions contemplated herein and will not look to the
other party for any contribution toward such expenses, provided that Maker
promises to pay all costs and expenses, including reasonable attorneys' fees,
incurred in connection with the collection and enforcement of this Convertible
Debenture.
(c) The parties acknowledge that Latham & Watkins has solely
represented Maker in connection with the negotiation, preparation and execution
of this Convertible Debenture.
(d) No failure or delay on the part of Payee or any other holder
of this Convertible Debenture to exercise any right, power or privilege under
this Convertible Debenture and no course of dealing between Maker and Payee
shall impair such right, power or privilege or operate as a waiver of any
default or an acquiescence therein, nor shall any single or partial exercise of
any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies expressly provided in this Convertible Debenture are cumulative to, and
not exclusive of, any rights or remedies that Payee would otherwise have. No
notice to or demand on Maker in any case shall entitle Maker to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the right of Payee to any other or further action in any circumstances
without notice or demand.
(e) Maker hereby consents to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waives diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
(f) If any provision in or obligation under this Convertible
Debenture shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(g) Neither Maker nor Payee shall assign any of its rights or
delegate any of its obligations under this Convertible Debenture to any third
party without the prior written consent of the other party, provided that Payee
may assign its rights under this Convertible Debenture to Teamasia Mauritius or
an affiliate of Teamasia Mauritius. This Convertible Debenture is binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
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(h) THIS CONVERTIBLE DEBENTURE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA.
(i) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST MAKER ARISING OUT OF
OR RELATING TO THIS CONVERTIBLE DEBENTURE MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OR COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA, AND BY EXECUTION AND
DELIVERY OF THIS CONVERTIBLE DEBENTURE MAKER ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS CONVERTIBLE DEBENTURE. Maker further irrevocably
consents to the service of process out of any of the aforementioned courts in
any action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Maker at its address set forth below it
signature hereto, such service to become effective seven days after such
mailing. Nothing herein shall affect the right of Payee or any holder of this
Convertible Debenture to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against Maker in any other
jurisdiction. Maker hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Convertible Debenture
brought in the courts referred to above and further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(j) MAKER AND, BY THEIR ACCEPTANCE OF THIS CONVERTIBLE DEBENTURE,
PAYEE AND ANY SUBSEQUENT HOLDER OF THIS CONVERTIBLE DEBENTURE, HEREBY
IRREVOCABLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OR ACTION BASED UPON OR ARISING OUT OF THIS CONVERTIBLE DEBENTURE OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS CONVERTIBLE
DEBENTURE AND THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. Maker and, by
their acceptance of this Convertible Debenture, Payee and any subsequent holder
of this Convertible Debenture, each (i) acknowledges that this waiver is a
material inducement to enter into a business relationship, that each has already
relied on this waiver in entering into this relationship, and that each will
continue to reply on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
OF THIS CONVERTIBLE DEBENTURE. In the event of litigation, this provision may be
filed as a written consent to a trial by the court.
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(k) Maker hereby waives the benefit of any statute or rule of law
or judicial decision, including without limitation California Civil Code Section
1654, which would otherwise require that the provisions of this Convertible
Debenture be construed or interpreted most strongly against the party
responsible for the drafting thereof.
(l) This Convertible Debenture may be amended only pursuant to a
written amendment executed by each of Maker and Payee.
IN WITNESS WHEREOF, Maker has caused this Convertible Debenture to
be executed and delivered by its duly authorized officer as of the day and year
and at the place first above written.
IMP, INC.
BY: /s/ Sugriva Reddy
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NAME: Sugriva Reddy
TITLE: Chief Executive Officer
ADDRESS: 2830 North First Street
San Jose, California 95134
TEAMASIA SEMICONDUCTORS
(INDIA) LTD.
BY: /s/ Subba Rao Pinamaneni
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NAME: Subba Rao Pinamaneni
TITLE: Managing Director
ADDRESS: Hyderabad, India
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