EXHIBIT 10.48
STOCK PURCHASE AGREEMENT
------------------------
IMPCO Technologies, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Ladies & Gentlemen:
The undersigned, ___________________ (the "Investor"), hereby confirms its
agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
________________, 2002 between IMPCO Technologies, Inc., a Delaware corporation
(the "Company"), and the Investor.
2. The Company is offering up to 2,500,000 shares (the "Shares") of common
stock of the Company, $0.001 par value per share (the "Common Stock"), subject
to adjustment by the Company's Board of Directors, to certain investors in a
private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor _______ Shares,
for a purchase price of $______ per share, or an aggregate purchase price of
$_____, pursuant to the Terms and Conditions for Purchase of Shares attached
hereto as Annex I and incorporated herein by reference as if fully set forth
herein. Certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below or such nominee
as the Investor shall designate below (in accordance with Annex I).
4. The Investor is not an affiliate or associate (in each case, as defined
in Rule 405 under the Securities Act) of any purchaser of the Company's common
stock named as a selling stockholder in the Company's prospectus dated February
15, 2002, filed in connection with the Company's private placement completed on
January 11, 2002.
5. This Agreement may be executed in one or more counterparts, each of
which may be executed by less than all of the parties and shall be deemed to be
an original instrument and all of which together shall constitute one and the
same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
____________________________________ Address:________________________________
"INVESTOR"
________________________________
email:___________________________________
By:_________________________________ Tax ID No.:______________________________
Print Name:_________________________ Contact Name:____________________________
Title:______________________________ Telephone:_______________________________
_________________________________________
Name in which shares should be registered
(if different from above)
AGREED AND ACCEPTED:
-------------------
IMPCO TECHNOLOGIES, INC.
By:_________________________
W. Xxxxx Xxxxx
Chief Financial Officer
Date:_________________, 2002
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
------------------------------------
conditions of the Stock Purchase Agreement attached hereto (the "Agreement"),
IMPCO Technologies, Inc., a Delaware corporation (the "Company") is offering up
to 2,500,000 shares of its Common Stock, $.001 par value (the "Shares). The
Company reserves the right to increase or decrease the number of Shares it is
offering. Capitalized terms not otherwise defined herein shall have the meaning
given to them in the Agreement.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
------------------------------------------------------------
2.1 At the Closing (as defined in Section 3), the Company will sell to the
Investor, and the Investor will purchase from the Company, upon the terms and
conditions hereinafter set forth, the number of Shares set forth on the
signature page hereto at the purchase price set forth on such signature page.
2.2 The Company is entering into this same form of Stock Purchase Agreement
with certain other investors (the "Other Investors") effective as of the date
hereof (the "Subscription Date") and expects to complete sales of Shares to
them. (The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the "Investors," and this Agreement and the Stock
Purchase Agreements executed by the Other Investors are hereinafter sometimes
collectively referred to as the "Agreements.")
3. Delivery of the Shares at Closing.
---------------------------------
3.1 The completion of the purchase and sale of the Shares (the "Closing")
shall occur (the "Closing Date") on the third business day after the
Subscription Date (or upon such earlier date as the Company and the Investors
shall agree), at the offices of the Company's counsel. At the Closing, the
Company shall deliver to the Investor one or more stock certificates
representing the number of Shares set forth on the signature page hereto, each
such certificate to be registered in the name of the Investor or a nominee
designated in writing by the Investor (it being understood that such designation
shall not change the Investor's beneficial ownership (within the meaning set
forth in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")).
3.2 The Company's obligation to issue the Shares to the Investor shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the Shares
being
1
purchased hereunder as set forth on the signature page hereto; (b)
completion of the purchases and sales under the Agreements with the Other
Investors; and (c) the accuracy of the representations and warranties made by
the Investors and the fulfillment of those undertakings of the Investors to be
fulfilled prior to the Closing.
3.3 The Investor's obligation to purchase the Shares shall be subject to
the following conditions, any one or more of which may be waived by the
Investor: (a) receipt by the Investor of one or more stock certificates
representing the number of Shares set forth on the signature page hereto; (b)
receipt by the Investor of an opinion letter reasonably satisfactory to the
Investor; (c) the accuracy of the representations and warranties made by the
Company on the date hereof and as of the Closing Date and the fulfillment of
those undertakings of the Company to be fulfilled prior to the Closing; (d) on
the Closing Date, no legal action, suit or proceeding shall be pending or
threatened which seeks to restrain or prohibit the transactions contemplated by
the Agreements; and (e) the Company shall have delivered to the Investors its
certificate, dated the Closing Date, duly executed by its Chief Executive
Officer to the effect set forth in clauses (c) and (d) above.
3.4 In no event shall the aggregate number of shares of Common Stock sold
or issuable to the Investors under the Agreements (including any Penalty Shares
(as defined below) issuable to the Investors) exceed 19.99% of the outstanding
voting power or outstanding shares of Common Stock of the Company as of the date
of this Agreement (immediately prior to the issuance of the Shares).
4. Representations, Warranties and Covenants of the Company. The Company
--------------------------------------------------------
hereby represents and warrants to, and covenants with, the Investor, except as
set forth in the Schedule of Exceptions, dated as of the date hereof (the
"Schedule of Exceptions"), attached to this Agreement as Exhibit B (which
---------
Schedule of Exceptions shall be deemed to be representations and warranties to
the Investor), and except as otherwise set forth in the SEC Documents, as
follows:
4.1 Organization. The Company is duly organized and validly existing in
------------
good standing under the laws of the jurisdiction of its organization. The
Company has full power and authority to own, operate and occupy its properties
and to conduct its business as presently conducted and is registered or
qualified to do business and in good standing in each jurisdiction in which it
owns or leases property or transacts business, except where the failure to be so
qualified would not have a material adverse effect upon the financial condition
or business, operations, assets or prospects of the Company, and no proceeding
has been instituted in any such jurisdiction, revoking, limiting or curtailing,
or seeking to revoke, limit or curtail, such power and authority or
qualification. The Company has no subsidiaries (as such term is defined in Rule
405 under the Securities Act of 1933, as amended (the "Securities Act")) other
than those set forth in the Schedule of
2
Exceptions. The Company's ownership of the capital stock of each subsidiary is
as set forth in the Schedule of Exceptions.
4.2 Due Authorization. The Company has all requisite power and authority to
-----------------
execute, deliver and perform its obligations under the Agreements, and the
Agreements have been duly authorized and validly executed and delivered by the
Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity or
public policy (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
4.3 Non-Contravention. The execution and delivery of the Agreements, the
-----------------
issuance and sale of the Shares to be sold by the Company under the Agreements,
the fulfillment of the terms of the Agreements and the consummation of the
transactions contemplated thereby will not (A) conflict with or constitute a
violation of, or default (with or without the giving of notice or the passage of
time or both) under, (i) any material bond, debenture, note or other evidence of
indebtedness, or under any material lease, indenture, mortgage, deed of trust,
loan agreement, joint venture or other agreement or instrument to which the
Company is a party or by which it or its properties are bound, (ii) the charter,
by-laws or other organizational documents of the Company, or (iii) any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or its
properties, or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or an acceleration of indebtedness
pursuant to any obligation, agreement or condition contained in any material
bond, debenture, note or any other evidence of indebtedness or any material
indenture, mortgage, deed of trust or any other agreement or instrument to which
the Company is a party or by which it is bound or to which any of the property
or assets of the Company is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, self-regulatory organization, stock exchange or
market, or other governmental body in the United States is required for the
execution and delivery of the Agreements and the valid issuance and sale of the
Shares to be sold pursuant to the Agreements, other than such as have been made
or obtained, and except for any filings required to be made under federal or
state securities laws and under the rules and regulations of the Nasdaq Stock
Market, Inc. ("Nasdaq").
3
4.4 Reporting Status. The Company has filed in a timely manner all
----------------
documents that the Company was required to file under the Exchange Act during
the 12 months preceding the date of this Agreement. The following documents
complied in all material respects with the SEC's requirements as of their
respective filing dates (or, if amended, as of the date of such amendment), and
the information contained therein as of the date thereof (or, if amended, as of
the date of such amendment) did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein in light of the circumstances under where they
were made not misleading, except to the extent that information contained in any
such document has been revised or superseded by a later filed SEC Document (as
defined below):
(i) The Company's Annual Report on Form 10-K for the year ended April
30, 2001, including the exhibits thereto (the "Form 10-K"); and
(ii) all other documents, including the exhibits thereto, filed by the
Company with the SEC since April 30, 2001 pursuant to the reporting
requirements of the Exchange Act through the date hereof (together
with the Form 10-K, the "SEC Documents").
4.5 Capitalization. As of the date hereof, the authorized capital stock of
--------------
the Company consists of 100,500,000 shares of capital stock, of which
100,000,000 shares are designated Common Stock and 500,000 shares are designated
preferred stock. As of April 18, 2002, there were approximately (i) 12,619,694
shares of Common Stock issued and outstanding, (ii) no shares of Preferred Stock
issued and outstanding, (iii) 1,406,622 shares of Common Stock issuable upon
exercise of outstanding stock options issued by the Company to employees,
consultants and directors of the Company, (iv) an additional 39,502 shares of
Common Stock available for issuance under the Company's stock incentive or
similar plans, and (v) 300,000 shares of Common Stock reserved for issuance upon
exercise of warrants issued by the Company. All outstanding shares of Common
Stock are duly authorized, validly issued, fully paid and nonassessable, free
from any liens or any other encumbrances created by the Company with respect to
the issuance and delivery thereof and not subject to preemptive rights. Other
than as disclosed in the SEC Documents, except as set forth above, there are no
outstanding rights, options, warrants, preemptive rights, rights of first
refusal agreements, commitments or similar rights for the purchase or
acquisition from the Company of any securities of the Company. The Shares to be
sold pursuant to the Agreements have been duly authorized, and when issued and
paid for in accordance with the terms of the Agreements will be duly and validly
issued, fully paid and nonassessable, free and clear of all pledges, liens,
encumbrances and other restrictions (other than those arising under federal or
state securities laws as a result of the private placement of the Shares to the
Investors). No preemptive
4
right, co-sale right, right of first refusal or other similar right exists
with respect to the Shares or the issuance and sale thereof. No further approval
or authorization of any stockholder, the Board of Directors of the Company or
others is required for the issuance and sale of the Shares. No holder of any of
the securities of the Company has any rights ("demand," "piggyback" or
otherwise), which rights have not been waived, to have such securities
registered by reason of the intention to file, filing or effectiveness of a
Registration Statement (as defined in Section 7.1 hereof).
4.6 Legal Proceedings. There is no material legal or governmental
-----------------
proceeding pending or, to the knowledge of the Company, threatened to which the
Company, any subsidiary or any officer or director of the Company in his or her
capacity as such officer or director is or may be a party or of which the
business or property of the Company or any subsidiary is subject that is not
disclosed in the SEC Documents. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body (including, without
limitation, the SEC) pending or, to the knowledge of the Company, threatened
against or affecting the Company or any subsidiary wherein an unfavorable
decision, ruling or finding could adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under the Agreements.
4.7 No Violations. The Company is not (a) in violation of its charter,
-------------
bylaws, or other organizational document, or in violation of any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company, which
violation, individually or in the aggregate, would be reasonably likely to have
a material adverse effect on the business, operations, assets or prospects or
financial condition of the Company, or (b) in default (and there exists no
condition which, with or without the passage of time or giving of notice or
both, would constitute a default) in any material respect in the performance of
any bond, debenture, note or any other evidence of indebtedness in any
indenture, mortgage, deed of trust or any other material agreement or instrument
to which the Company or any subsidiary is a party or by which the Company or any
subsidiary is bound or by which the properties of the Company or any subsidiary
are bound, in each case which would be reasonably likely to have a material
adverse effect upon the business, operations, assets or prospects or financial
condition of the Company and its subsidiaries, taken as a whole.
4.8 Governmental Permits, Etc. The Company has all necessary franchises,
-------------------------
licenses, certificates and other authorizations from any foreign, federal, state
or local government or governmental agency, department, or body that are
currently necessary for the operation of the business of the Company as
currently conducted, except where the failure to so currently possess could not
reasonably be expected to have a material adverse effect upon the business,
operations, assets or prospects or financial condition of the Company.
5
4.9 Intellectual Property. The Company and its subsidiaries own or possess
---------------------
sufficient rights to use all patents, patent rights, trademarks, copyrights,
licenses, inventions, trade secrets, trade names and know-how (collectively,
"Intellectual Property") that are necessary for the conduct of the Company's
business as a whole as now conducted except where the failure to currently own
or possess such Intellectual Property would not have a material adverse effect
on the financial condition or business of the Company and its subsidiaries,
taken as a whole. Except as set forth in the SEC Documents, (i) neither the
Company nor any subsidiary has received any notice of, or has any knowledge of,
any infringement of asserted rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect on the financial condition or business, operations,
assets or prospects of the Company and its subsidiaries, taken as a whole, and
(ii) neither the Company nor any subsidiary has received any notice of any
infringement rights by a third party with respect to any Intellectual Property
of the Company or any subsidiary that, individually or in the aggregate, would
have a material adverse effect upon the business, operations, assets or
prospects or financial condition of the Company and its subsidiaries, taken as a
whole.
4.10 Financial Statements. The consolidated financial statements of the
--------------------
Company and the related notes thereto included in the SEC Documents present
fairly, in accordance with the rules and regulations of the SEC, the financial
position of the Company as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified. Such financial
statements (including the related notes) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods therein specified, except such adjustments as are
described in the SEC Documents.
4.11 No Material Adverse Change. Except as disclosed in the SEC Documents,
--------------------------
press releases or in other "public disclosures" as such term is defined in
Section 101(e) of Regulation FD of the Exchange Act, since April 30, 2001 there
has not been (i) any material adverse change in the financial condition,
earnings or prospects of the Company or any subsidiary, nor has any material
adverse event occurred to the Company or any subsidiary (it being understood
that the Company has incurred operating losses), (ii) any obligation, direct or
contingent, that is material to the Company and its subsidiaries, taken as a
whole, incurred by the Company or any subsidiary, except obligations incurred in
the ordinary course of business, (iii) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, or (iv) any loss or
damage (whether or not insured) to the physical property of the Company or any
subsidiary which has been sustained, in each case which has, or could reasonably
be expected to have, a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its subsidiaries, taken as a whole. Except
6
as disclosed in the SEC Documents, press releases or in other "public
disclosures" as such term is defined in Section 101(e) of Regulation FD of the
Exchange Act, since April 30, 2001, the Company has not (i) sold, assigned,
transferred, abandoned, mortgaged, pledged or subjected to lien any of its
material properties, tangible or intangible, or rights under any material
contract, permit, license, franchise or other agreement or (ii) waived or
cancelled any indebtedness or other obligations owed to the Company or any
subsidiary.
4.12 Nasdaq Listing. The Company's Common Stock is registered pursuant to
--------------
Section 12(g) of the Exchange Act and is listed on the Nasdaq National Market,
and the Company has taken, and upon the closing of the sale of the Shares
pursuant to the Agreements, will have taken, no action designed to, or that will
have the effect of, terminating the registration of the Common Stock under the
Exchange Act or de-listing the Common Stock from the Nasdaq National Market, nor
to the Company's knowledge is Nasdaq currently contemplating terminating such
listing. The Company and the Common Stock meet the criteria for continued
listing and trading on the Nasdaq National Market as of the date hereof and will
meet such criteria on the Closing Date. The Company will use its best efforts to
maintain listing of the Common Stock, including the Shares, on the Nasdaq
National Market.
4.13 Listing of the Shares. On April 19, 2002, the Company filed an
---------------------
Additional Share Listing Notification Form with Nasdaq. The Company shall comply
with all requirements of Nasdaq with respect to the issuance of the Shares and
the listing thereof on the Nasdaq National Market, and the Company shall file
such other applications and notices as may be required in connection with the
listing of the Shares on the Nasdaq National Market. The Company shall provide
evidence of such filings to the Investors. The Company will pay the listing fee
for the Shares in accordance with applicable Nasdaq requirements.
4.14 No Manipulation of Stock. The Company has not taken and will not, in
------------------------
violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
4.15 S-3 Status. The Company meets the requirements for the use of Form S-3
----------
for the registration of the resale of the Shares by the Investors and will use
its reasonable best efforts to maintain eligibility for the use of Form S-3
during the Registration Period (as defined in Section 7.1(c)).
4.16 Insurance. The Company and its subsidiaries maintain and will continue
---------
to maintain insurance against loss or damage by fire or other casualty and such
other insurance, including, but not limited to, product liability insurance,
7
in such amounts and covering such risks as is reasonably adequate consistent
with industry practice for the conduct of their business and the value of their
properties.
4.17 Tax Matters. The Company and its subsidiaries have filed all material
-----------
federal, state and local income and franchise and other tax returns required to
be filed and have paid all taxes due in accordance therewith, and no tax
deficiency has been determined adversely to the Company or any subsidiary which
has had (nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any subsidiary, would reasonably be
expected to have) a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries, taken as a whole.
4.18 Investment Company. The Company is not an "investment company" within
------------------
the meaning of such term under the Investment Company Act of 1940 and the rules
and regulations of the SEC thereunder.
4.19 No Registration. Assuming the accuracy of the representations and
---------------
warranties made by, and compliance with the covenants of, the Investors in
Section 5 hereof, no registration of the Shares under the Securities Act is
required in connection with the offer and sale of the Shares by the Company to
the Investors as contemplated by the Agreements.
4.20 Internal Accounting Controls. The Company maintains a system of
----------------------------
internal accounting controls sufficient, in the judgment of the Company's board
of directors, to provide reasonable assurance that (i) transactions are executed
in accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
4.21 Form D. The Company agrees to file one or more Forms D with respect to
------
the Shares on a timely basis as required under Regulation D under the Securities
Act to claim the exemption provided by Rule 506 of Regulation D and to provide a
copy thereof to the Investors and their counsel promptly after such filing.
4.22 No Integration. The Company will not sell, offer to sell, solicit
--------------
offers to buy or otherwise negotiate in respect of any "equity security" (as
defined in the Exchange Act) that is or would be integrated with the sale of the
Shares in a manner that would require the registration of the Shares under the
Securities Act.
8
4.23 Related Party Transactions. The Company has disclosed all transactions
--------------------------
required to be disclosed by the Company under the Securities Act, the Exchange
Act or the rules and regulations thereunder as currently in effect, between the
Company or any subsidiary, on the one hand, and any of the Company's officers,
directors or affiliates (as defined in Rule 405 under the Securities Act) or any
family member thereof, on the other hand.
5. Representations, Warranties and Covenants of the Investor.
---------------------------------------------------------
5.1 The Investor represents and warrants to, and covenants with, the
Company that: (i) the Investor is an "accredited investor" as defined in Rule
501(a) of Regulation D under the Securities Act and the Investor has the
knowledge, sophistication and experience necessary to make, and is qualified to
make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company or investments in comparable companies, and
has requested, received, reviewed and considered all information it deemed
relevant in making an informed decision to purchase the Shares; (ii) the
Investor is acquiring the number of Shares set forth on the signature page
hereto for its own account for investment only and with no present intention of
distributing any of such Shares in violation of the Securities Act or any
arrangement or understanding with any other persons regarding the distribution
of such Shares; (iii) the Investor will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except in
compliance with the Securities Act, applicable state securities laws and the
respective rules and regulations promulgated thereunder; (iv) the Investor is
the beneficial owner of the Shares purchased pursuant to this Agreement; (v) the
Investor has filled in all requested information on the signature page hereto
for use in preparation of the Registration Statement and the answers thereto are
true and correct as of the date hereof and will be true and correct as of the
Closing Date; (vi) the Investor will notify the Company promptly of any change
in any of such information until such time as the Investor has sold all of its
Shares or until the Company is no longer required to keep the Registration
Statement effective; and (vii) the Investor has, in connection with its decision
to purchase the number of Shares set forth on the signature page hereto, relied
only upon the confidential Private Placement Memorandum dated April 23, 2002,
the SEC Documents, other publicly available information and the representations
and warranties of the Company contained herein. The Investor understands that
its acquisition of the Shares has not been registered under the Securities Act
or registered or qualified under any state securities law in reliance on
specific exemptions therefrom, which exemptions may depend upon, among other
things, the bona fide nature of the Investor's investment intent as expressed
herein.
9
5.2 The Investor acknowledges that no action has been or will be taken in
any jurisdiction outside the United States by the Company that would permit an
offering of the Shares, or possession or distribution of offering materials in
connection with the issue of the Shares, in any jurisdiction outside the United
States where action for that purpose is required. If the Investor is located or
domiciled outside the United States it agrees to comply with all applicable laws
and regulations in each foreign jurisdiction in which it purchases, offers,
sells or delivers Shares or has in its possession or distributes any offering
material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any sale of
the Shares without complying with the provisions of this Agreement, including
Section 7.2 hereof and, without effectively causing the prospectus delivery
requirement under the Securities Act to be satisfied, if applicable, and the
Investor acknowledges that the certificates evidencing the Shares will be
imprinted with a legend that prohibits their transfer except in accordance with
the Securities Act and applicable state securities laws. The Investor
acknowledges that there may occasionally be times when the Company, based on the
advice of its counsel, determines that, subject to the limitations of Section
7.2, it must suspend the use of the Prospectus forming a part of the
Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the SEC or
until the Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with,
the Company that (i) the Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement and (ii) this Agreement constitutes a valid
and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws.
5.5 The Investor will not, prior to the effectiveness of the Registration
Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge
or grant any right with respect to (collectively, a "Disposition"), the Common
Stock of the Company in violation of the Securities Act, nor will Investor
engage in any hedging or other transaction which is designed to or could
reasonably be expected to lead to or result in a Disposition of Common Stock of
the Company by
10
the Investor or any other person or entity in violation of the Securities Act.
Such prohibited hedging or other transactions would include without limitation
effecting any short sale or having in effect any short position (whether or not
such sale or position is against the box and regardless of when such position
was entered into) or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to the Common Stock of the
Company or with respect to any security (other than a broad-based market basket
or index) that includes, relates to or derives any significant part of its value
from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or any other
materials presented to the Investor in connection with the purchase and sale of
the Shares constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Investor is not an officer, director or "affiliate" (as that term
is defined in Rule 405 of the Securities Act) of the Company.
5.8 The Investor has not been presented with or solicited by or through any
leaflet, public promotional meeting, or television advertisement or, to the
Investor's knowledge, with any other form of communication which appeared to the
Investor to constitute general solicitation or advertising with respect to the
Offering.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
------------------------------------------------------
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein shall survive the execution of this Agreement, the delivery to the
Investor of the Shares being purchased and the payment therefor.
7. Registration of the Shares; Compliance with the Securities Act.
--------------------------------------------------------------
7.1 Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) prepare and file with the SEC, within 30 days after the Closing Date, a
registration statement (the "Registration Statement") on Form S-3 to enable the
resale of the Registrable Shares (as defined below) by the Investors on a
delayed or continuous basis under Rule 415 of the Securities Act, subject to
receipt of necessary information from the Investor pursuant to Section 7.4.
"Registrable Shares" means (i) all shares of Common Stock purchased in the
Offering and (ii) Penalty Shares (as defined below), if any, and any shares of
the Company's common stock issued or issuable as a dividend on or in exchange
for or otherwise with respect to the foregoing. The offerings made by the
Investors participating pursuant to the Registration Statement shall not be
underwritten;
11
(b) use its best efforts, subject to receipt of necessary information from
the Investors pursuant to Section 7.4, to cause the Registration Statement to
become effective within 90 days after the Closing Date;
(c) use commercially reasonable efforts to prepare and file with the SEC
such amendments and supplements to the Registration Statement and the Prospectus
used in connection therewith and take all such other actions as may be necessary
to keep the Registration Statement current and effective for a period (the
"Registration Period") not exceeding, with respect to each Investor's
Registrable Shares, the earlier of (i) the second anniversary of the Closing
Date, (ii) the date on which the Investor may sell all Shares then held by the
Investor without restriction by the volume limitations of Rule 144(e)(1)(i) of
the Securities Act, or (iii) such time as all Registrable Shares held by such
Investor have been sold.
(d) promptly furnish to the Investor with respect to the Shares registered
under the Registration Statement such number of copies of the Registration
Statement, Prospectuses and Preliminary Prospectuses in conformity with the
requirements of the Securities Act and such other documents as the Investor may
reasonably request, in order to facilitate the public sale or other disposition
of all or any of the Shares by the Investor;
(e) promptly take such action as may be necessary to qualify, or obtain an
exemption for, the Registrable Shares under such of the state securities laws of
United States jurisdictions as shall be necessary to qualify, or obtain an
exemption for, the sale of the Registrable Shares in states specified in writing
by the Investor; provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any jurisdiction in
which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a)
through (e) of this Section 7.1 and the registration of the Shares pursuant to
the Registration Statement, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing
fees and expenses (including filings made by the Company with the NASD); (ii)
fees and expenses of compliance with federal securities and state "blue sky" or
securities laws; (iii) expenses of printing (including printing certificates for
the Registrable Securities and Prospectuses), messenger and delivery services;
(iv) all application and filing fees in connection with listing the Registrable
Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (v) all fees and disbursements of
counsel of the Company and independent certified public accountants of the
Company (including the expenses of any special audit and "cold comfort" letters
required by or incident to
12
such performance); provided, however, that each Investor shall be responsible
for paying the underwriting commissions or brokerage fees, and taxes of any kind
(including, without limitation, transfer taxes) applicable to any disposition,
sale or transfer of such Investor's Registrable Securities. The Company shall,
in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, rating agency fees and the
fees and expenses of any person, including special experts, retained by the
Company;
(g) advise the Investors, within two business days by e-mail, fax or other
type of communication, and, if requested by such person, confirm such advice in
writing: (i) after it shall receive notice or obtain knowledge of the issuance
of any stop order by the SEC delaying or suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for that
purpose, or any other order issued by any state securities commission or other
regulatory authority suspending the qualification or exemption from
qualification of such Registrable Securities under state securities or "blue
sky" laws; and it will promptly use its reasonable best efforts to prevent the
issuance of any stop order or other order or to obtain its withdrawal at the
earliest possible moment if such stop order or other order should be issued; and
(ii) when the Prospectus or any Prospectus Supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or any
post-effective amendment thereto, when the same has become effective;
(h) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC;
(i) use commercially reasonable efforts to cause all Registrable Shares to
be listed on each securities exchange or market, if any, on which the Common
Stock of the Company is then listed; and
(j) use commercially reasonable efforts to take all other steps necessary
to effect the registration of the Registrable Shares contemplated hereby and to
enable the Investors to sell the Shares under Rule 144.
(k) The Company further agrees that, in the event that the Registration
Statement (i) has not been filed with the SEC within 30 days after the Closing
Date, (ii) has not been declared effective by the SEC within 90 days after the
Closing Date, or (iii) in the event the Investors are unable to sell their
Shares solely because the Company has not complied with its obligations in
Section 7.2(b) or (d) below (each such event referred to in clauses (i), (ii)
and (iii), a "Registration Default"), for all or part of each 30-day period (a
"Penalty Period") during which the Registration Default remains uncured, the
Company shall issue or pay, as applicable, to each Investor for each Penalty
Period 1% of the aggregate purchase price paid by the Investor for its Shares,
payable in validly issued, fully paid and
13
nonassessable shares of Common Stock (valued at the average of the closing price
of the Common Stock for the three trading days ending on the last trading day of
such Penalty Period) (the "Penalty Shares") or cash, at the option of the
Company; provided however, that the Company shall not be liable to the Investor
for any Registration Default to the extent that such Registration Default
resulted from the Investor's failure to supply information as required by
Section 7.4; and provided further, that if the issuance of Penalty Shares by the
Company would result in the Company being required under Nasdaq rules or other
applicable rules to obtain the approval of the Company's stockholders, then the
Company shall pay cash rather than issue such Penalty Shares to the extent
needed to avoid such stockholder approval. The Company shall deliver said shares
or cash payment to the Investor by the fifth business day after the end of each
such Penalty Period. Notwithstanding anything to the contrary in Section 7.3 or
any other provision of this Agreement, the issuance of the Penalty Shares or
cash as provided in this Section 7.1(k) shall be the Investor's sole and
exclusive remedy in the event of any Registration Default; provided, however,
that if the foregoing remedy is deemed unenforceable by a court of competent
jurisdiction then the Investor shall have all other remedies available at law or
in equity.
7.2 Transfer of Shares; Suspension.
------------------------------
(a) The Investor agrees that it will not effect any Disposition of the
Shares or its right to purchase the Shares that would constitute a sale within
the meaning of the Securities Act except as contemplated in the Registration
Statement referred to in Section 7.1 and as described below or otherwise in
accordance with the Securities Act, and that it will promptly notify the Company
of any changes in the information set forth in the Registration Statement
regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company
shall, at all times during the Registration Period, promptly (i) prepare and
file from time to time with the SEC a post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; (ii) provide the Investor copies of any documents
filed pursuant to Section 7.2(b)(i); and (iii) inform each Investor that the
Company has complied with its obligations in Section 7.2(b)(i) (or that, if the
Company has filed a post-effective amendment to the
14
Registration Statement which has not yet been declared effective, the Company
will notify the Investor to that effect, will use its commercially reasonable
efforts to secure the effectiveness of such post-effective amendment as promptly
as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i)
hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, so long as the Investor holds any
Registrable Shares, in the event (i) of any request by the SEC or any other
federal or state governmental authority during the period of effectiveness of
the Registration Statement for amendments or supplements to a Registration
Statement or related Prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose; (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) of any event or circumstance which necessitates the making of any
changes in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (v) of any event or
development, the disclosure of which at the time is not, in the good faith
opinion of the Board of Directors of the Company, in the best interest of the
Company; then the Company shall deliver a notice in writing to the Investor (the
"Suspension Notice") to the effect of the foregoing (provided that in such
notice the Company shall not disclose the contents of such material non-public
information to the Investors) and, upon receipt of such Suspension Notice, the
Investor will refrain from selling any Registrable Shares pursuant to the
Registration Statement (a "Suspension") until the Investor's receipt of copies
of a supplemented or amended Prospectus prepared and filed by the Company, or
until it is advised in writing by the Company that the current Prospectus may be
used, and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in any such Prospectus, and the
Investor shall not disclose to any third party that such a notice has been given
or the contents of the notice. In the event of any Suspension, the Company will
use its commercially reasonable efforts, consistent with the best interests of
the Company and its stockholders, to cause the use of the Prospectus so
suspended to be resumed as soon as reasonably practicable after the delivery of
a Suspension Notice to the Investor. In addition to and without limiting any
other remedies (including, without limitation, at law or at equity) available to
15
the Investor, the Investor shall be entitled to specific performance in the
event that the Company fails to comply with the provisions of this
Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the
Investor shall not be prohibited from selling Registrable Shares under the
Registration Statement as a result of Suspensions on more than two occasions
(for two separate events) of not more than 45 days each in any twelve month
period.
(e) Provided that a Suspension is not then in effect, the Investor may sell
Registrable Shares under the Registration Statement, provided that it arranges
for delivery of a current Prospectus to the transferee of such Shares. Upon
receipt of a request therefor, the Company has agreed to provide, at its own
expense, an adequate number of current Prospectuses (including documents
incorporated by reference therein) to the Investor and to supply copies to any
other parties requiring such Prospectuses.
(f) In the event of a sale of Registrable Shares by the Investor under the
Registration Statement, as a condition to the transfer of the Shares on the
books of the Company, the Investor shall deliver to the Company's transfer
agent, with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit A, so that the Registrable
Shares may be properly transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
---------------
(i) the term "Selling Stockholder" shall include the Investor and any
person controlling such Investor;
(ii) the term "Registration Statement" shall include any final Prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement or Prospectus a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any losses, claims, damages, liabilities or
expenses to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of, or are based
upon any untrue statement of a material fact contained in the Registration
Statement or Prospectus, or violation by the Company of the Securities Act,
Exchange Act, the rules and regulations thereunder or U.S. state securities or
"blue sky" laws, and the Company will promptly reimburse such Selling
Stockholder for any reasonable legal or other expenses incurred in
investigating, defending or preparing to defend, settling, compromising or
paying any such action, proceeding or claim, provided, however, that the Company
shall not be liable in any such case to the extent that such loss, claim,
damage, liability or expense arises solely out of, or is based upon, an untrue
statement made in such Registration Statement in reliance upon and in conformity
with written information furnished to the Company by such Selling Stockholder
specifically for use in preparation of the Registration Statement or the failure
of such Selling Stockholder to comply with its obligations under Sections
7.2(a), (c) or (e) hereof respecting sale of the Shares (unless, with respect to
the Investor's obligation to deliver a Prospectus, the Company has failed to
provide a current Prospectus to the Investor) or any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was delivered
to the Investor on a timely basis prior to its use.
(b) The Investor agrees (severally and not jointly with any other Investor)
to indemnify and hold harmless the Company (and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
each officer of the Company who signs the Registration Statement and each
director of the Company) from and against any losses, claims, damages,
liabilities or expenses to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of, or are based upon (i) the
Investor's failure to comply with its obligations under Sections 7.2(a), (c) or
(e) hereof (unless, with respect to the Investor's obligation to deliver a
Prospectus, the Company has failed to provide a current Prospectus to the
Investor), or (ii) any untrue statement of a material fact contained in the
Registration Statement if such untrue statement was made in reliance upon and in
conformity with written information furnished by the Investor specifically for
use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as the
case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend, settling, compromising or
paying any such action, proceeding or claim. Notwithstanding the foregoing, (x)
the Investor's aggregate liability pursuant to this subsection (b) and
subsection (d) shall be limited to the net amount received by the Investor from
the sale of the Shares.
(c) Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 7.3, such indemnified
person shall notify the indemnifying person in writing of such claim or
of the commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying party's ability to
defend such action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided further,
however, that if there exists or shall exist a conflict of interest that would
make it inappropriate, in the opinion of counsel to the indemnified person, for
the same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying person;
provided however, that no indemnifying person shall be responsible for the fees
and expenses of more than one separate counsel (together with appropriate local
counsel) for all indemnified parties. In no event shall any indemnifying person
be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; provided
that such consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages, liabilities or expenses (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Investor on
the other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages, liabilities or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, in the
case of an untrue statement,
whether the untrue statement relates to information supplied by the Company on
the one hand or an Investor on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement. The Company and the Investors agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Investors were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Investor shall be required to contribute any amount in excess
of the net amount received by the Investor from the sale of the Shares. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Investors'
obligations in this subsection to contribute are several in proportion to their
sales of Shares to which such loss relates and not joint.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 7.3, and are fully informed regarding said
provisions.
7.4 Information by Investors. The Investor shall provide all such
------------------------
information and materials and take all such action as may be required or
reasonably requested in order to permit the Company to comply with all
applicable requirements of the Securities Act, the Exchange Act, the NASD and
Nasdaq, including but not limited to the information requested in the Selling
Stockholder Questionnaire attached as Exhibit C hereto and such additional
---------
information as may be requested by the SEC, the NASD, Nasdaq or any other
regulatory authority in connection with the Registration Statement.
7.5 Rule 144. For a period of two years following the date hereof, the
--------
Company agrees with each holder of Registrable Shares to:
(a) comply with the requirements of Rule 144(c) under the Securities Act
with respect to current public information about the Company; and
(b) use its commercially reasonable efforts to file with the SEC in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time it is subject to such reporting
requirements).
19
7.6 Termination of Conditions and Obligations. The conditions precedent
-----------------------------------------
imposed by Section 5 or this Section 7 upon Dispositions of the Registrable
Shares by the Investor shall cease and terminate as to any particular number of
the Registrable Shares and the restrictive legend shall be removed when such
Registrable Shares shall have been effectively registered under the Securities
Act and sold or otherwise disposed of in compliance with the prospectus delivery
requirements under the Securities Act and in accordance with the intended method
of disposition set forth in the Registration Statement covering such Registrable
Shares or at such time as an opinion of counsel reasonably satisfactory to the
Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act (provided that such opinion
shall not be required if the Company shall be furnished with written
documentation reasonably satisfactory to it that such Registrable Shares are
being transferred in a customary transaction exempt from registration under Rule
144 under the Securities Act).
8. Notices. Except as specifically permitted by Section 7.1(g), all
-------
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
and (iv) if delivered by facsimile, upon electric confirmation of receipt and
shall be delivered as addressed as follows:
(a) if to the Company, to:
IMPCO Technologies, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Phone (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
20
Phone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Investor, at its address on the signature page hereto, or at
such other address or addresses as may have been furnished to the
Company in writing.
with a copy to:
Xxxxxxxxx & Xxxxxxx
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
9. Changes. This Agreement may not be modified or amended except pursuant
-------
to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11. Severability. In case any provision contained in this Agreement should
------------
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
12. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the internal laws of the State of California, without giving
effect to the principles of conflicts of law.
13. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto pertaining to the subject matter hereof, and any and
all other written or oral agreements relating to such subject matter are
expressly cancelled.
14. Finders Fees. Neither the Company nor the Investor nor any affiliate
------------
thereof has incurred any obligation which will result in the obligation of the
other party to pay any finder's fee or commission in connection with this
transaction, except for fees payable by the Company to Xxxxx, Xxxxxxxx and Xxxx.
15. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
21
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
16. Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and permitted assigns of the Company and the
Investors, including without limitation affiliates of the Investors, subject to
the conditions set forth below. With respect to transfers that are not made
pursuant to the Registration Statement, the rights and obligations of an
Investor under this Agreement shall be automatically assigned by such Investor
to any transferee of all or any portion of such Investor's Registrable Shares
who is a Permitted Transferee (as defined below); provided, however, that within
two business days prior to the transfer, (i) the Company is provided notice of
the transfer including the name and address of the transferee and the number of
Registrable Shares transferred; and (ii) that such transferee agrees in writing
(pursuant to a duly executed instrument in form reasonably satisfactory to the
Company) to be bound by the terms of this Agreement and makes the
representations and warranties contained in this Agreement. (For purposes of
this Agreement, a "Permitted Transferee" shall mean any Person who (a) is an
"accredited investor," as that term is defined in Rule 501(a) of Regulation D
under the Securities Act and (b) is a transferee of at least 100,000 Registrable
Shares as permitted under the securities laws of the United States). Upon any
transfer permitted by this Section 16, the Company shall be obligated to such
transferee to perform all of its covenants under this Agreement as if such
transferee were an Investor.
17. Expenses. Each of the Company and the Investors shall bear its own
--------
expenses in connection with the preparation and negotiation of the Agreement,
except that the Company shall pay the reasonable fees and expenses of Xxxxxxxxx
& Xxxxxxx, counsel to the Investors, which payment shall not exceed $30,000 in
the aggregate.
22
EXHIBIT A
---------
CERTIFICATE OF SUBSEQUENT SALE
------------------------------
Mellon Investor Services LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
IMPCO Technologies, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Re: Sale of Shares of Common Stock of IMPCO Technologies, Inc. (the
"Company") pursuant to the Company's Prospectus dated _____________
(the "Prospectus")
Ladies and Gentlemen:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the number of shares of the Company's
Common Stock indicated below pursuant to the Prospectus and in a manner
described under the caption "Plan of Distribution" in the Prospectus, and that
such sale complies with all applicable securities laws, including, without
limitation, the Prospectus delivery requirements of the Securities Act of 1933,
as amended.
Selling Stockholder (the beneficial owner):_____________________________________
Record Holder (e.g., if held in name of nominee):_______________________________
Restricted Stock Certificate No.(s):____________________________________________
Number of Shares Sold:__________________________________________________________
Date of Sale:___________________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated:________________ _______________________________________________________
Print Full Legal Name of Selling Stockholder or Nominee
By:____________________________________________________
Name:__________________________________________________
Title:_________________________________________________
EXHIBIT B
---------
SCHEDULE OF EXCEPTIONS TO THE
STOCK PURCHASE AGREEMENT
AND TERMS AND CONDITIONS FOR PURCHASE OF SHARES,
DATED AS OF MAY ___, 2002,
BY AND AMONG
IMPCO TECHNOLOGIES, INC.
AND
THE INVESTORS SIGNATORY THERETO
The following are exceptions to the representations, warranties, covenants
and agreements of IMPCO Technologies, Inc. (the "Company") contained in the
-------
Stock Purchase Agreement and the Terms and Conditions for Purchase of Shares
attached as Annex I thereto, dated as of May ___, 2002 (collectively, the
"Agreement"), by and among the Company and the Investors signatory thereto (each
---------
an "Investor" and collectively, the "Investors") and should be considered an
-------- ---------
integral part of the Agreement. The section numbers in this Schedule of
Exceptions correspond to the section numbers in the Agreement, provided,
however, that any information disclosed herein or under any section number or in
any schedule to the Agreement available to the Investors shall be deemed
disclosed and incorporated into any of the sections to which it is related if a
reasonable person would determine that the disclosure contained therein contains
enough information so as to qualify such other sections. The inclusion of any
item hereunder shall not be deemed to be an admission by the Company that such
item is material to the business, assets or results of operations of the
Company, nor shall it be deemed an admission of any obligation or liability to
any third party.
Section 4.1
-----------
Subsidiaries of the Company
---------------------------
Percentage Jurisdiction
Subsidiary Owned by IMPCO of Formation
----------------------------------------------------------------------------------
Quantum Fuel Systems Technologies Worldwide, Inc. 100% Delaware
IMPCO Technologies B.V. 51% Netherlands
Grupo I.M.P.C.O. Mexicano, S. de X.X. de C.V. 90% Mexico
IMPCO Technologies, Pty. Limited 100% Australia
IMPCO Tech Japan K.K 100% Japan
Xxxxx IMPCO Technologies, Ltd. 60% India
Xxxxx IMPCO Limited 40% India
IMPCO Fuel Systems (NSW) Pty. Ltd. 51% Australia
IMPCO Technologies (SA) Pty. Ltd. 100% Australia
IMPCO Technologies (NSW) Pty. Ltd. 100% Australia
IMPCO Technologies GmbH 51% Germany
IMPCO Technologies S.a.r.l 51% France
IMPCO Technologies Ltd. 51% U.K.
EXHIBIT C
---------
Selling Stockholder Questionnaire
---------------------------------
