STOCK PURCHASE AGREEMENT
EXHIBIT 10.2
STOCK PURCHASE
AGREEMENT
This
STOCK PURCHASE AGREEMENT (this “Agreement”), is
entered into as of May 7, 2009, by and among the sellers listed on Schedule I attached
hereto (each, a “Seller” and
collectively, the “Sellers”), and
Micrel, Incorporated, a California corporation (the “Corporation”) and
each of the natural persons listed on Schedule II attached
hereto, severally but not jointly (each such natural person a “Purchaser” and
collectively, the “Purchasers” and
together with the Corporation, the “Purchaser Group,” and
individually, a “member of
the Purchaser
Group”).
WHEREAS,
each member of the Purchaser Group wishes to purchase from the Sellers, and the
Sellers wish to sell to the Purchaser Group those number of shares of common
stock, no par value per share (the “Shares”), set forth
next to such member of the Purchaser Group’s name on Schedule II attached
hereto, of the Corporation, subject to the terms and conditions set forth
herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and for
such other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF
SHARES
1.1 Sale of
Shares. Upon the terms and conditions hereinafter set forth,
the Sellers shall on the date hereof transfer, assign, set over and deliver to
the Purchaser Group, and the Purchaser Group shall purchase from the Sellers,
all of Sellers’ right, title and interest in and to the Shares. In
connection with the foregoing, the Sellers shall deliver the Shares to the
Purchaser Group through the facilities of the Depository Trust Company.
1.2 Purchase
Price. The purchase price per Share shall be approximately
U.S. $6.50, totaling in the aggregate U.S. $20,104,065.06 (the “Purchase
Price”). This Purchase Price per share represents a discount
to the average trading price of the Corporation’s common stock on the NASDAQ
Stock Market over the 30 calendar days immediately preceding the date of this
Agreement of approximately 10%. On the date hereof, the Purchaser
Group shall deliver to the Sellers the Purchase Price by wire transfer of
immediately available funds in accordance with the wire instructions set forth
on Schedule III
attached hereto.
ARTICLE II
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS OF THE SELLERS
Each
Seller hereby jointly and severally represents and warrants to, and agrees with,
each member of the Purchaser Group, as of the date hereof, as
follows:
2.1 Each
Seller is duly organized, validly existing and in good standing under the laws
of its organization, with all requisite power and authority to execute this
Agreement and to consummate the transactions contemplated hereby.
2.2 The
Sellers are not in violation of any provision of their organizational documents
that would prevent the execution or delivery of this Agreement by the Sellers or
the consummation of the transactions contemplated hereby.
2.3 This
Agreement has been duly authorized, executed and delivered by each Seller and
constitutes the valid and binding obligation of each Seller, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, moratorium or other similar laws
relating to or affecting the rights of creditors generally and by equitable
principles, including those limiting the availability of specific performance,
injunctive relief and other equitable remedies and those providing for equitable
defenses.
2.4 Assuming
the accuracy of the representations of the Purchaser Group set forth in Article
III, all consents, approvals or authorizations of, or registrations, filings or
declarations with, any governmental authority, if any, required in connection
with the execution, delivery and performance by the Sellers of this Agreement or
the transactions contemplated hereby have been obtained by the Sellers and will
be in full force and effect.
2.5 The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and performance of the Sellers obligations under this
Agreement will not result in a breach by Seller of, conflict with, or constitute
a default by Seller, with or without the passage of time and giving of notice,
under any agreement, instrument, judgment, order, writ, prohibition, injunction
or decree to which Seller is a party, to which the Seller may be subject or by
which Seller may be bound or an event which results in the creation of any lien,
charge or encumbrance upon the Shares to be sold by such Seller or would prevent
the execution or delivery of this Agreement by the Sellers or the transfer,
conveyance and sale of the Shares pursuant to the terms hereof.
2.6 Each
Seller is the sole beneficial, record and legal owner of, and has good, valid
and marketable right, title and interest in and to, the Shares set forth next to
their name on Schedule
I attached hereto, free and clear of any and all liens and
encumbrances.
2.7 No broker
or finder has acted for the Sellers in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder’s fee or other commissions in respect of such transactions
based upon agreements, arrangements or understandings made by or on behalf of
the Sellers.
2.8 In
connection with the sale of the Shares hereunder, each Seller has not and each
of its agents has not (a) engaged in any “general solicitation,” as defined in
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities
Act”), (b) “published” any “advertisement,” as defined in the California
Corporate Securities Act of 1968, as amended, and the regulations thereunder, or
(c) offered the Shares to any person who is not an “accredited investor,” as
defined in the Securities Act, in connection with the offer and sale of the
Shares.
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2.9 Each
Seller has had the opportunity to meet with the officers and directors of the
Corporation to learn about the business affairs and financial condition of the
Corporation. Each Seller has received all information that it has
reasonably requested from the Corporation regarding the Corporation, the
Corporation’s assets, financial condition, results of operations, business and
its prospects, and acknowledges that in the future, the Shares may have a value
greater than the amount paid for the Shares under this
Agreement. Each Seller further represents and warrants that it has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of selling the Shares to be sold
hereunder by it. Each Seller understands that Seller may be deemed to
be an “affiliate” within the meaning of the Rule 144(a)(1) of the Securities Act
and the Shares being sold hereunder are being sold pursuant to an exemption from
the registration provisions under the Securities Act.
2.10 Each
Seller acknowledges that the Corporation is making no representation or warranty
as to the tax consequences to the Sellers in connection with the transactions
contemplated by this Agreement. Each Seller further acknowledges that
it has had an opportunity to seek independent counsel and advisors with respect
to tax and other matters relating to this Agreement, and such Seller
acknowledges and agrees that it shall bear its own tax consequences in
connection with the transactions contemplated by this Agreement. Each
Seller is a partnership organized or created in the United States or a
subdivision thereof for U.S. federal income tax purposes.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS OF THE PURCHASER GROUP
3.1 Representations and
Warranties of the Corporation. The Corporation hereby
represents and warrants to the Sellers, as of the date hereof:
(a) The
Corporation is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
(b) The
Corporation is not in violation of any provision of its organizational documents
that would prevent the execution or delivery of this Agreement by the
Corporation or the consummation of the transactions contemplated
hereby.
3.2 Representations and
Warranties of the Purchasers. Each Purchaser, severally but
not jointly, hereby represents and warrants to the Sellers, as of the date
hereof, as follows:
(a) Each
Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated
under the Securities Act, and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
transactions contemplated under this Agreement. Each Purchaser
represents that by reason of its business and financial experience, each
Purchaser has the capacity to evaluate the merits and risks of its investment in
the Shares and to protect its own interests in connection with the transactions
contemplated in this Agreement. Each Purchaser’s financial condition
is such that it is able to bear all economic risks of investment in the Shares,
including a complete loss of its investment. Each Purchaser
understands the terms of and risks associated with the acquisition of the
Shares.
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(b) Each
Purchaser is acquiring the Shares for investment purposes, with no intention of
distributing or reselling any of the Shares or any interest
therein. Each Purchaser is not purchasing the Shares as a result of
any advertisement, article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
solicitation or general advertisement. Each Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
entity, organization or individual to sell or transfer or grant participations
in, the Shares to any such entity, organization or
individual.
(c) Each
Purchaser understands that each Purchaser may be deemed to be an “affiliate”
within the meaning of the Rule 144(a)(1) of the Securities Act and the Shares
acquired hereunder by affiliates of the Corporation may not be later sold,
pledged or otherwise transferred unless a registration statement for such
transaction is effective under the Securities Act and any applicable state
securities laws, or unless an exemption from such registration provisions is
available with respect to such transaction.
3.3 Representations and
Warranties of the Purchaser Group. Each member of the
Purchaser Group severally but not jointly, hereby represents and warrants to the
Sellers, as of the date hereof, as follows:
(a) This
Agreement has been duly authorized, executed and delivered by each member of the
Purchaser Group and constitutes the valid and binding obligation of each member
of the Purchaser Group, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent transfer,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and by equitable principles, including those limiting the
availability of specific performance, injunctive relief and other equitable
remedies and those providing for equitable defenses.
(b) No
authorization, consent, approval or other order of, or declaration to or filing
with, any governmental agency or body is required for the valid authorization,
execution, delivery and performance by each member of the Purchaser Group of
this Agreement and the consummation of the transactions contemplated
hereby other than any applicable filings under the Securities Act and the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and
rules and regulations promulgated thereunder.
(c) No broker
or finder has acted for the Purchaser Group in connection with this Agreement or
the transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder’s fee or other commissions in respect of such transactions
based upon agreements, arrangements or understandings made by or on behalf of
any member of the Purchaser Group.
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ARTICLE IV
MISCELLANEOUS
4.1 Survival of Representations,
Warranties and Covenants. The representations, warranties and
covenants of the Sellers and the Purchaser Group contained herein shall survive
the date hereof.
4.2 Indemnification. Each
party shall indemnify, defend and hold harmless the other party, its managers,
directors, officers, members, partners, shareholders, employees, attorneys,
accountants, agents and representatives and their heirs, successors and assigns
from and against all liabilities, losses, and damages, together with all
reasonable costs and expenses related thereto (including, without limitation,
legal and accounting fees and expenses) based upon or arising out of (a) any
inaccuracy or breach of any representation and warranty of such party herein,
and (b) any breach of any covenant and agreement of such party
herein.
4.3 Withholding. Each
Seller shall deliver to the Purchaser Group, concurrently with the execution of
this Agreement, a properly executed Internal Revenue Service Form W-9 or Form
W-8 along with all required attachments, certifying that such Seller is not
subject to backup withholding. If such form is not received by
Purchaser Group, Purchaser Group shall be entitled to withhold and deduct such
amounts from the Purchase Price as are required under U.S. tax law, in which
case (i) Purchaser Group shall promptly pay such amounts to the appropriate
governmental authority and (ii) such withheld amounts shall be treated as having
been paid to the applicable Seller for all purposes under this
Agreement. Each Seller shall indemnify, defend and hold harmless the
Purchaser Group from and against any withholding tax applicable to payments to
such Seller pursuant to this Agreement.
4.4 Notices. All
notices and other communications by the Purchaser Group or the Sellers hereunder
shall be in writing to the other party and shall be deemed to have been duly
given when delivered in person or by an overnight courier service, or sent via
telecopy transmission and verification received, or when posted by the United
States postal service, registered or certified mail, return receipt requested
with postage prepaid, at the address set forth on the signature page hereto or
to such other addresses as a party may from time to time designate to the other
party by written notice thereof, effective only upon actual
receipt.
4.5 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
4.6 Entire
Agreement. This Agreement constitutes the entire agreement by
the parties hereto and supersedes any other agreement, whether written or oral,
that may have been made or entered into between them relating to the matters
contemplated hereby.
4.7 Amendments and
Waivers. This Agreement may be amended, modified, superseded,
or canceled, and any of the terms, representations, warranties or covenants
hereof may be waived, only by written instrument executed by each of the parties
hereto or, in the case of a waiver, by the party waiving
compliance.
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4.8 Captions; Counterparts,
Execution. The captions in this Agreement are for convenience
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement. This Agreement may
be executed in one or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument.
4.9 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to conflicts
of laws principles. Any legal action or proceeding in connection with
this Agreement or the performance hereof may be brought in the state and federal
courts located in the State of California for the County of Santa Xxxxx, or the
United States District Court for the Northern District of California, and the
parties hereby irrevocably submit to the non-exclusive jurisdiction of such
courts for the purpose of any such action or proceeding. The parties
hereby irrevocably waive trial by jury in any action, proceeding or claim
brought by any party hereto or beneficiary hereof on any matter whatsoever
arising out of or in an way connected with this Agreement.
4.10 Further
Assurances. Each of the parties hereto will use all reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the purchase and sale of the Shares and the other transactions contemplated by
this Agreement.
[-signature pages
follow-]
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IN
WITNESS WHEREOF, the Purchaser Group and the Sellers have caused this Agreement
to be duly executed as of the date first above written.
PURCHASER
GROUP:
CORPORATION: MICREL,
INCORPORATED
By:
/s/ Xxx Xxxx
Name: Xxx Xxxx
Title: President,
CEO and Chairman of the Board
Address: 0000
Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000
PURCHASERS:
/s/ Xxxx Xxxxxx
Xxxx
Xxxxxx
Address: 0000
Xxxxxxx Xxxxxx
Xxxxx
Xxxx, XX 00000
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx
Address: 00000
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
/s/ Jung-Xxxx Xxx
Jung-Xxxx
Xxx
Address:
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
__________________________________
Signature
page to Stock Pruchase Agreement
SELLERS: OBREM
CAPITAL OFFSHORE MASTER, LP
By: Obrem Capital (GP), LLC, its
general
partner
By: /s/
Xxxxxx Xxxxxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxxxxx
Title: Managing
Member
Address: 000
0xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
OBREM
CAPITAL (QP), LP
By: Obrem Capital (GP), LLC, its
general
partner
By:
/s/ Xxxxxx Xxxxxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxxxxx
Title: Managing
Member
Address: 000
0xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Signature
page to Stock Pruchase Agreement
Schedule
I
|
Sellers
|
Number
of Shares
|
Purchase
Price
|
||||||
|
Obrem
Capital Offshore Master, LP
|
||||||||
|
Obrem
Capital (QP) LP
|
||||||||
|
TOTAL
|
3,091,000 | $ | 20,104,065.06 | |||||
Schedule
II
|
Purchaser Group
|
Number of Shares
|
Purchase Price
|
||||||
|
Corporation
|
||||||||
|
Micrel,
Incorporated
|
3,075,000 | 20,000,000.00 | ||||||
|
Purchasers
|
||||||||
|
Xxxxx
Xxxxxxxxx
|
6,000 | 39,024.40 | ||||||
|
Jung-Xxxx
Xxx
|
5,000 | 32,520.33 | ||||||
|
Xxxx
Xxxxxx
|
5,000 | 32,520.33 | ||||||
|
TOTAL
|
3,091,000 | $ | 20,104,065.06 | |||||
Schedule
III
Wire
Instructions
Chase
Manhattan Bank, N.Y.
ABA#
000-000-000
F/A/O
Goldman Xxxxx & Co, N.Y.
A/C#
000-0-000000
F/F/C
(Obrem Capital Management,
LLC)
A/C#
000-00000-0
