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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 25, 2000
REGISTRATION NO. __________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IMP, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<TABLE>
<S> <C> <C>
DELAWARE 3674 94-2722142
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
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2830 NORTH FIRST STREET
SAN JOSE, CALIFORNIA 95143-2071
(408) 432-9100
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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BRAD WHITNEY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2830 NORTH FIRST STREET
SAN JOSE, CALIFORNIA 95143-2071
(408) 432-9100
(Name, Address Including Zip Code, and Telephone Number Including Area Code,
of Agent for Service)
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COPIES TO:
RICHARD S. GREY
ORRICK, HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 392-1122
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AT SUCH TIME OR TIMES AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT
AS THE SELLING STOCKHOLDERS SHALL DETERMINE.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT (1) (1) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 547,220 4.25(2) $2,325,685 $614
==================================================================================================================
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(1) Estimated solely for the purpose of computing the amount of the registration
fee based on the average of the high and low closing price of the Common Stock
as reported on the Nasdaq SmallCap Market on January 20, 2000, pursuant to Rule
457(c).
(2) 527,000 shares consist of Common Stock previously issued in a private
placement. 20,220 shares consist of Common Stock to be issued upon exercise of a
previously issued warrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Prospectus
547,220 Shares
IMP, INC.
Common Stock
This prospectus is part of a registration statement that covers 547,220
shares of our Common Stock (the "Shares"). These shares may be offered and sold
from time to time by certain of our shareholders (the "Selling Stockholders").
We will not receive any of the proceeds from the sale of the Common Stock. We
will bear the costs relating to the registration of the Shares, which we
estimate to be $47,114. 527,000 of the Shares were issued to certain Selling
Stockholders in connection with a private placement of our Common Stock on
February 8, 1999. The other 20,220 Shares were issued to certain Selling
Stockholders pursuant to a warrant agreement dated November 4, 1999. The Selling
Stockholders may sell the Shares from time to time on the Nasdaq SmallCap Market
in regular brokerage transactions, in transactions directly with market makers
or in certain privately negotiated transactions. See "Plan of Distribution."
Each Selling Stockholder has advised us that no sale or distribution other than
as disclosed herein will be effected until after this Prospectus shall have been
appropriately amended or supplemented, if required, to set forth the terms
thereof. We will not receive any proceeds from the sale of the Shares by the
Selling Stockholders. Selling commissions, brokerage fees, any applicable stock
transfer taxes and any fees and disbursements of counsel to the Selling
Stockholders are payable individually by the Selling Stockholders.
Each of the Selling Stockholders may be deemed to be an "Underwriter," as
such term is defined in the Securities Act of 1933, as amended (the "Securities
Act").
On January 20, 2000, the last sale price of the Company's Common Stock on
the Nasdaq SmallCap Market was $4.25 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus and in any accompanying prospectus supplement. No
one has been authorized to provide you with different information.
The Shares are not being offered in any jurisdiction where the offer is not
permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the documents.
The date of this Prospectus is January 25, 2000
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WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and special reports and other
information with the Securities and Exchange Commission (the "SEC"). You may
read and copy any document that we file at the SEC's public reference rooms in
Washington, D.C., New York, New York, and Chicago, Illinois. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to you free of charge at the SEC's Website at
http://www.sec.gov.
Our Common Stock is quoted on the Nasdaq SmallCap Market under the symbol
"IMPX." Reports, proxy and information statements and other information about us
may be inspected at the office of the National Association of Securities
Dealers, Inc., 9513 Key West Ave., Rockville, Maryland 20850.
We have filed with the Commission a registration statement (the
"Registration Statement") under the Securities Act of 1933 (the "Securities
Act") with respect to the securities offered hereby. This Prospectus, which is
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement and its exhibits and schedules, certain
items of which are omitted as allowed by the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, we refer you to the Registration Statement and its
exhibits and schedules.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede previously filed information, including
information contained in this document.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until this offering has been completed.
(1) The Company's amended form 10-K/A No. 2 for the fiscal year ended March
28, 1999, filed January 7, 2000;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
June 27, 1999 filed August 11, 1999;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
September 27, 1999 filed November 10, 1999;
(4) The Company's amended Quarterly Report on Form 10-Q/A for the fiscal
quarter ended June 27, 1999 filed January 7, 2000;
(5) The description of the Company's Common Stock in the Company's
Registration Statement on Form 8-A dated June 23, 1987.
You may request free copies of these filings by writing or telephoning us at
the following address: Chief Financial Officer, IMP, Inc., 2830 North First
Street, San Jose, California 95143, (408) 432-9100.
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The Company
IMP, Inc. ("IMP" or the "Company") designs, manufactures and sells
integrated circuit (IC) semiconductor devices, also known as microchips. We
focus on a specialized technology sector called the analog IC market. We sell
our analog IC technology in two basic forms. We manufacture IC wafers for other
semiconductor vendors using our own and customer-developed processes. This has
comprised the majority of IMP revenues for the last decade. Following a downturn
in our historic lines of business in fiscal 1997, we decided to expand our
activities into the market for standard analog power-management ICs. Our goal is
to provide a broad portfolio of devices to manage the power supply needs of the
portable, wireless and Internet-based systems that are driving today's computer
and communications revolution. This new product direction builds on the
historical strengths of our people, technology and manufacturing capabilities
and is intended to serve a broad base of customers in a growing market
opportunity.
Our wafer production and testing factory is in San Jose, California. This
facility, as well as our design and development procedures, are certified to
meet the quality demands of the International Standards Organization
specification number ISO 9001. We operate our own wafer fabrication plant in
order to develop and control the specialized analog technologies that are
essential for the design of products offering unique technical advantages to the
customer. Also, to the extent that we can run the plant at close to full
capacity, we believe that we can enjoy a cost advantage over companies that use
third-party wafer foundry suppliers.
IMP was founded as a California corporation in January 1981 under the name
of International Microelectronic Products. We reincorporated in Delaware as
International Microelectronic Products, Inc. in April 1987 and our initial
public stock offering was made that same year. In September 1993, our
Certificate of Incorporation was amended to formally change the name of the
Company to the IMP, Inc. IMP stock is traded on the Nasdaq SmallCap Market under
the ticker symbol of IMPX. Our main offices are located at 2830 North First
Street, San Jose, California 95134-2071. You can contact us by telephone at 408
432-9100, by fax at 408 434-0335, and by e-mail at [email protected].
RISK FACTORS
The Company's business, financial condition and results of operations have
been, and in the future may be, affected by a variety of factors, including
those set forth below and elsewhere in this report.
THERE MAY BE A NEAR-TERM NEED FOR A CASH INFUSION INTO THE COMPANY
The Company has minimal financial resources and operating needs are funded
principally from the collection of accounts receivable. Should the cash flow
from accounts receivable be lessened or interrupted by slow collections or by a
decrease in revenue generation, the Company could very quickly find itself
unable to meet its obligations.
During the second and third quarters of fiscal 2000, the Company failed to make
the scheduled payments due under its equipment notes payable and substantially
all of its capital lease obligations. These instances of nonpayment put the
Company in default of these agreements and in default of our revolving credit
facility due to a cross default clause in the revolving credit facility
agreement. The Company has renegotiated the payment terms under certain of these
obligations. However, the Company has been unable to renegotiate the payment
terms under one capital lease obligation. The company remains in default of the
revolving credit facility and certain capital lease obligations due to cross
default
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clauses in these agreements. Should such creditors and lessors declare the
principal amount of the Company's indebtedness to be immediately due and
payable, the potential sources for additional capital investment are neither in
place nor identified.
WE MAY CONTINUE TO REPORT LOSSES AND NEGATIVE CASH FLOW IN THE FUTURE
Although we experienced a growth in revenues in the last two quarters of
fiscal 1999, revenues decreased in the first quarter of fiscal 2000. We have
reported operating losses and negative cash flow since the second quarter of
fiscal 1997. Unless this trend of increasing revenue continues, there is
substantial risk that we will continue to report losses and negative cash flow
in the future. Our cash balance has decreased over each of the last several
quarters. As of December 26, 1999 we had cash and cash equivalents of
approximately $631,000. If we do continue to report operating losses and
negative cash flow we will need to obtain additional funding to remain in
operation. There can be no assurance that such funding will be available to us
at reasonable rates, if at all.
WE ARE DEPENDENT ON ONE CUSTOMER'S COMMITMENTS TO UTILIZE OUR FOUNDRY AND TO
RAISE NEEDED CAPITAL TO PURCHASE OUR COMMON STOCK
As discussed in the "Material Changes" section below, Teamasia
Semiconductors (India) Ltd., ("Teamasia"), a corporation headquartered in India
involved in the manufacturing and sale of discrete semiconductor devices, has
agreed to utilize a significant portion of our foundry capacity in the coming
year and also to make certain purchases of our Common Stock. In the event that
Teamasia were to experience financial or operational difficulties resulting in a
reduction or interruption in utilization of the foundry and a corresponding
reduction or interruption in payments to us for foundry services, or were to
otherwise fail to perform its obligation to utilize our foundry services, our
operating results would be adversely affected. Furthermore, if Teamasia were to
experience financial or operational difficulties that cause it to default on its
obligations under the Agreement or the Phase Two Stock Purchase Agreement, or if
Teamasia were to default on such obligations for any other reason, our cash
position would be negatively affected, and the risks discussed above would be
heightened.
WE MAY HAVE TO SEEK THE CONSENTS OF THIRD-PARTIES IF WE EXPERIENCE SIGNIFICANT
ADDITIONAL EQUITY INVESTMENTS
As discussed in the "Material Changes" section below, Teamasia has executed
a stock purchase agreement under which it will make significant additional
equity investments in our Common Stock. In order to complete those investments
without breaching the terms of certain existing agreements, we will have to seek
consents from certain creditors, including creditors under capital leases and
revolving credit agreements. Some or all of these third-parties may refuse to
grant such consent without our agreeing to changes in the terms of our agreement
with them and such changes may adversely affect our operating results. There is
also the possibility that some of these agreements may be terminable by such
third-parties as a result of Teamasia's additional equity investment; any such
terminations may adversely affect our operating results if we may be unable to
arrange suitable replacements for the terminated agreements.
OUR COMMON STOCK PRICE MAY BE VOLATILE BECAUSE OUR STOCK TRADES ON THE NASDAQ
SMALLCAP MARKET
On December 11, 1998, a hearing was held before a Panel authorized by the
National Association of Securities Dealers, Inc. Board of Governors to determine
whether we would be allowed to maintain the listing of our Common Stock on the
Nasdaq National Market. The hearing addressed, among other things, our
compliance with the minimum $1 per share price requirement and the $4 million
net tangible
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assets requirement for stock traded on Nasdaq. The Panel concluded that we could
retain our listing on the Nasdaq National Market if we complied with the
following conditions: (i) effect a one-for-ten reverse split of our Common Stock
so that our closing bid price meets or exceeds the $1.00 per share for a minimum
of ten consecutive trading days; (ii) file with the Securities and Exchange
Commission (SEC) on or before February 16, 1999, a December 31, 1998 balance
sheet, which, with pro forma adjustments for significant events and transactions
after such date, shows net tangible assets of at least $4.0 million; and (iii)
file with the SEC on or before March 31, 1999, a balance sheet as of a date 45
days prior thereto, which, with appropriate pro forma adjustments, shows net
tangible assets of at least $6.5 million.
Effective January 13, 1999, as provided in the Certificate of Amendment of
the Second Restated Certificate of Incorporation of the Company, as filed with
the State of Delaware Secretary of State on January 12, 1999, we effected a
one-for-ten reverse stock split, thus addressing the minimum trading price per
share requirement. On February 16, 1999 we filed a proforma balance sheet dated
as of December 31, 1998 incorporating the effect of a February 1999 Private
Placement showing net tangible assets of $6.1 million. We did not satisfy the
final criterion of net tangible assets of $6.5 million by March 31, 1999. As a
result, on April 7, 1999 our common stock was moved from the Nasdaq National
Market to the Nasdaq SmallCap Market where it continues to trade under the
symbol "IMPX." On November 19, 1999, Nasdaq informed the Company that, based on
the net tangible assets of the Company as of the end of the quarter ended
September, 1999, the Company no longer met the $2,000,000 net tangible assets
requirement for continued listing on the Nasdaq SmallCap Market, and requested a
response from the Company. The Company provided Nasdaq with financial statements
indicating that as of the end of November, 1999 the Company's net tangible
assets had increased to $2,990,000. Management believes that the Company is now
in compliance with Nasdaq's net tangible assets requirement for continued
listing on the Nasdaq SmallCap Market, and management has no reason to believe
that the Company would be unable to meet any of the criteria for continued
listing on the Nasdaq SmallCap Market into the reasonably foreseeable future.
Because of the low volume of trading on the Nasdaq SmallCap Market, an investor
could find it more difficult to dispose of, or to obtain accurate quotations as
to the market value of, our securities. In addition, if our common stock trading
price remains below $5.00 per share, trading in our common stock could also be
subject to the requirements of certain rules promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which require additional
disclosure by broker-dealers in connection with any trades involving a stock
defined as a penny stock (generally, any non-Nasdaq equity security that has a
market price of less than $5.00 per share, subject to certain exceptions). The
additional burdens imposed upon broker-dealers by such requirements could
discourage broker-dealers from trading in our common stock, which could severely
limit the market liquidity of our common stock and the ability of investors to
trade our common stock.
In addition, our market capitalization might decrease and stockholder value
might decrease as a result of the reverse stock split. The reverse split
increased the number of odd-lot holders of our common stock. Transaction costs
involving odd-lot amounts of common stock are generally higher on a per-share
basis than transaction costs involving even-lot amounts of common stock. Thus,
the reverse split might have the effect of increasing the transaction costs of
certain of our stockholders.
OUR SUCCESS DEPENDS ON OPERATING OUR FOUNDRY AT HIGH CAPACITY.
In the near term our success depends on our ability to attract additional
orders from new and existing customers for our analog and high-voltage wafer
fabrication services. In the past, during periods of low demand, high fixed
wafer fabrication costs have had a material adverse effect on our results of
operations. Since the first quarter of fiscal 1997, our operating results were
materially adversely affected by the low utilization of the Company's
manufacturing facility.
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OUR SUCCESS DEPENDS ON OUR DEVELOPMENT AND MARKETING OF NEW ANALOG PRODUCTS.
In the long term, our success depends on our ability to develop new analog
integrated circuit products for existing and new applications, to introduce such
products in a timely manner, and to gain customer acceptance for our products.
The development of new analog integrated circuits is highly complex and from
time to time we have experienced delays in developing and introducing new
products. Successful product development and introduction depends on a number of
factors including proper new product definition, completion of design and
testing of new products on time, achievement of acceptable manufacturing yields
and market acceptance of our and our customers' products. Moreover, successful
product design and development depends on our ability to attract, retain and
motivate qualified analog design engineers, of which there is a limited number.
There can be no assurance that we will be able to meet these challenges or
adjust to changing market conditions as quickly and cost-effectively as
necessary to compete successfully.
Due to the complexity and variety of analog circuits, the limited number of
analog circuit designers and the limited effectiveness of computer-aided design
systems in the design of analog circuits, we cannot be certain that we will be
able to continue to successfully develop and introduce new products on a timely
basis. We seek to design alternate source products that have already achieved
market acceptance from other vendors, as well as new proprietary IMP products.
However, we cannot be sure that any products we introduce will be accepted by
customers or that any product initially accepted by our customers will result in
production orders. If we fail to continue to develop, introduce and sell new
products successfully, we could experience material and adverse affects to our
long-term business and operating results.
OUR SUCCESS WILL BE DEPENDENT UPON OUR ABILITY TO FABRICATE HIGHER-MARGIN
PRODUCTS.
The ability of the Company to transition from the fabrication of
lower-margin products to higher-margin products, including both those developed
by the Company and those for which it serves as a third-party foundry, is very
important for the Company's future results of operations. Rapidly changing
customer demands may result in the obsolescence of existing Company inventories.
There can be no assurances that the Company will be successful in its efforts to
keep pace with changing customer demands. In this regard, the ability of the
Company to develop higher-margin products will be materially and adversely
affected if it is unable to retain its engineering personnel due to the
Company's current business climate.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY AGAINST CURRENT AND FUTURE
COMPETITORS.
Many of our competitors have substantially greater technical, manufacturing,
financial and marketing resources than we do. Our international sales are
primarily denominated in U.S. currency. Consequently, changes in exchange rates
that strengthen the U.S. dollar could increase the price in local currencies of
our products in foreign markets and make our products relatively more expensive
than our competitor's products that are denominated in local currency. Due to
the current excess of supply over demand for semiconductors of all types,
including both foundry services and analog integrated circuits, we expect
continued strong competition from existing suppliers and the entry of new
competitors. Such competitive pressures could reduce the market acceptance of
our products and result in market price reductions and increases in expenses
that could adversely affect our business, financial condition or results of
operations.
IF PROTECTION OF OUR TRADEMARKS AND PROPRIETARY RIGHTS IS INADEQUATE, OUR
BUSINESS WILL BE MATERIALLY HARMED.
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Although we are not currently a party to any material litigation relating to
patents and other intellectual property rights, because of technological
developments in the semiconductor industry, it is possible that certain of our
designs or processes may involve infringement of existing patents. We also
cannot be sure that any of our patents will not be invalidated, circumvented or
challenged, that the rights granted thereunder will provide competitive
advantages to us or that any of our pending or future patent applications will
be issued. We have from time to time received, and may in the future receive,
communications from third parties asserting patents, maskwork rights, or
copyrights on certain of our products and technologies. The Company has been
contacted by the Lemelson Medical Foundation. This foundation has filed patent
violation legal actions against 88 semiconductor companies. The Company is
currently not one of the defendants in this action but might be added at a later
date. Although we are not currently a party to any material litigation, if a
third party were to make a valid intellectual property claim and a license were
not available on commercially reasonable terms, our operating results could be
materially and adversely affected. Litigation, which could result in substantial
cost to us and diversion of our resources, may also be necessary to enforce our
patents or other intellectual property rights or to defend us against claimed
infringement of the rights of others.
IF WE CANNOT MANUFACTURE PRODUCTS IN SUFFICIENT QUANTITY OR QUALITY, OUR
BUSINESS WILL BE MATERIALLY HARMED.
The fabrication of integrated circuits is a highly complex and precise
process. Minute impurities, contaminants in the manufacturing environment,
difficulties in the fabrication process, defects in the masks used to print
circuits on a wafer, manufacturing equipment failure, wafer breakage or other
factors can cause a substantial percentage of wafers to be rejected or numerous
die on each wafer to be nonfunctional. The majority of our costs of
manufacturing are relatively fixed, and, consequently, the number of shippable
die per wafer for a given product is critical to our results of operations. If
we do not achieve acceptable manufacturing yields or if we experience product
shipment delays, our financial condition or results of operations would be
materially and adversely affected. We have from time to time in the past
experienced lower than expected production yields, which have delayed product
shipments and adversely affected gross margins. Moreover, we cannot be sure that
we will be able to maintain acceptable manufacturing yields in the future.
We manufacture all of our wafers at the one fabrication facility in San
Jose. Given the unique nature of our processes, it would be difficult to arrange
for independent manufacturing facilities to supply such wafers in a short period
of time. Any prolonged inability to utilize our manufacturing facility as a
result of fire, natural disaster or otherwise, would have a material adverse
effect on our financial condition or results of operations. Although we believe
that we have adequate capacity to support our near term plans, we have in the
past subcontracted the fabrication of a portion of our wafer production to
outside foundries, and may need to do so again. At the present time, there are
several wafer foundries that are capable of supplying certain of our needs.
However, we cannot be sure that we will always be able to find the necessary
foundry capacity.
OUR INABILITY TO FORECAST CORRECTLY COULD ADVERSELY AFFECT OUR RELATIONSHIPS
WITH CUSTOMERS AND RESULT IN LARGER THAN DESIRED INVENTORY LEVELS
Due to the relatively long manufacturing cycle for integrated circuits, we
build some of our inventory before we receive orders from our customers. Because
of inaccuracies inherent in forecasting the demand for such products, inventory
imbalances periodically occur that result in surplus amounts of some of our
products and shortages of others. Such shortages can adversely affect customer
relationships; surpluses can result in larger than desired inventory levels. Our
backlog consists of distributor and OEM customer
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orders required to be shipped within six months following the order date.
Customers may generally cancel or reschedule orders to purchase products without
significant penalty to the customer. As a result, to reflect changes in their
needs, customers frequently revise the quantities of our products to be
delivered and their delivery schedules. Because backlog can be canceled or
rescheduled without significant penalty, we do not believe our backlog is a
meaningful indicator of future revenue. In addition, our backlog includes our
orders from domestic distributors as to which revenues are not recognized until
the products are sold by the distributors. Such products when sold may result in
revenue lower than the stated backlog amounts as a result of discounts that we
authorize at the time of sale by the distributors.
IF OUR SUBCONTRACTORS ARE UNABLE TO PERFORM IN A TIMELY MANNER OR WE ARE UNABLE
TO OBTAIN MATERIALS NECESSARY FOR OUR PRODUCTS, OUR BUSINESS WILL BE MATERIALLY
HARMED
We depend on a number of subcontractors for certain of our manufacturing
processes, such as epitaxial deposition services. If any of these subcontractors
fails to perform these processes on a timely basis, there could be manufacturing
delays, which could materially adversely affect our results of operations.
Currently, we purchase certain materials, including silicon wafers, on a
purchase order basis from a limited number of vendors. Any interruption or
termination of supply from any of these suppliers could have a material adverse
effect on our financial condition and results of operations. Our products are
packaged by a limited group of third party subcontractors in Indonesia and other
Asian countries. Certain of the raw materials included in such products are
obtained from sole source suppliers. Although we are trying to reduce our
dependence on our sole and limited source suppliers, disruption or termination
of any of these sources could occur and such disruptions could have a material
adverse effect on our financial condition or results of operations. As is common
in the industry, independent third party subcontractors in Asia currently
assemble all of our products. In the event that any of our subcontractors were
to experience financial, operational, production or quality assurance
difficulties resulting in a reduction or interruption in our supply, our
operating results would be adversely affected until alternate subcontractors, if
any, became available.
IF WE FAIL TO COMPLY WITH ENVIRONMENTAL AND SAFETY REGULATIONS, OUR BUSINESS
WILL BE MATERIALLY HARMED.
Federal, state, and local regulations impose a variety of safety and
environmental controls on the storage, handling, discharge and disposal of
certain chemicals and gases used in semiconductor manufacturing. Our facilities
have been designed to comply with these regulations, and we believe that our
activities are conducted in material compliance with such regulations. We cannot
be sure, however, that interpretation and enforcement of current or future
environmental regulations will not impose costly requirements upon us. If we
fail to control adequately the storage, use and disposal of regulated
substances, we could incur future liabilities.
Increasing public attention has been focused on the safety and environmental
impacts of electronic manufacturing operations. While to date we have not
experienced any materially adverse effects on our business from such
regulations, we cannot be sure that changes or new interpretations of such
regulations will not impose costly equipment, facility or other requirements.
WE MAY BE ADVERSELY IMPACTED IF THE SOFTWARE, COMPUTER TECHNOLOGY AND OTHER
SYSTEMS WE USE ARE NOT YEAR 2000 COMPLIANT.
We are currently conducting a company-wide Year 2000 readiness program (the
Y2K program). The Y2K program is addressing the issue of computer programs and
embedded computer chips being able to
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distinguish between the year 1900 and the year 2000. Any of such systems and
equipment, including integrated circuits, computers and manufacturing equipment,
sold or used by us, our customers and our suppliers, that recognize a date code
field of "00" as the year 1900 rather than the year 2000 could cause such
systems or equipment to malfunction prior to or in the year 2000 and lead to
significant business delays, additional expenses and disruptions in service or
operations. As a result, the systems and equipment of all business organizations
containing integrated circuits, software or computer hardware may need to be
upgraded or replaced in order to resolve the potential impact of this
misinterpretation and the resulting errors or system failures and to make such
systems, equipment and software Year 2000 compliant.
Our Y2K program is divided into four sections - (1) IMP Manufactured
Products, (2) Internal Information Technology (IT) Systems, (3) Manufacturing
Systems and Equipment, and (4) Third Party Suppliers and Customers. The Y2K
program is divided into three phases (i) inventorying potential Year 2000 items,
(ii) assessing the Year 2000 compliance of items determined to be material to
IMP; and (iii) repairing or replacing such material items. We have substantially
completed the first two phases of work required to achieve Year 2000 compliance
requirements and in Phase Three we have modified, repaired or replaced the
majority of items in our inventory. We believe we will complete substantially
all of the issues that we have identified by the end of 1999. Some items that
cannot be tested appropriately or economically may require additional work after
that time.
Through March 28, 1999, we have spent less than $200,000 in costs associated
with making our systems and equipment Year 2000 compliant. Based on the
preliminary results of the assessment and the modifications completed to date,
we believe that the total cost for year 2000 compliance will not exceed
$500,000. However, we can not be certain that any assessments and updates will
be completed on a timely basis, if at all, or within estimated budgets, or that
any updates or corrections that are performed will work as anticipated in the
year 2000.
Impact on Sales of IMP Manufactured Products.
We design our products both internally and through third party design
providers. Both sources of product design rely on licenses of third party
technology for certain aspects of these designs. We have done an internal
assessment of the Year 2000 compliance of certain of our stand-alone products,
and we believe that these products are designed so that they are not dependent
on embedded software or hardware that relies on a date code field and,
therefore, such products are Year 2000 compliant. We also manufacture wafers
containing designs implemented by our customers. We have no knowledge of the
Year 2000 compliance of such products. To the extent that date information is
necessary for the proper functioning of our products and our customer's
products, the products rely on date information from other manufacturer's
devices resident in the networks or systems in which they operate. Thus, any
Year 2000 problems within these third party products or systems could cause such
products not to work properly and disrupt other companies' devices and systems.
Any failure of these products to be Year 2000 compliant would result in the
malfunctioning of such products or of the systems in which such products
operate. Any failure of our products, our customers' designs or any third party
products on which our products rely or any third party products which
incorporate certain of our licensed designs or technologies to be Year 2000
compliant could result in a substantial decline in our revenues or could result
in substantial unexpected expenses associated with product returns, warranty
claims and claims for consequential damages and would materially adversely
affect our business, results of operations and financial condition.
Internal Information Technology (IT) System. With respect to our internal IT
computer systems, we are now in Phase Three of the Y2K program. We have
evaluated and have replaced or have tested
-10-
<PAGE> 11
operating systems for the critical computers used for our management information
systems. Many applications programs have been modified and we are working to
modify the rest of our applications programs by the end of 1999. We are also in
Phase Three of our Y2K program for our non-IT systems, such as personal
computers. Where necessary we plan to upgrade or replace critical non-compliant
systems by the end of 1999.
Manufacturing Systems and Equipment. We rely on a number of embedded
programs, computer systems and applications to operate and monitor the design,
control and manufacturing aspects of our business. These include automated
design software and fabrication, test and physical plant equipment with embedded
hardware and/or software. With respect to such items, we are now in Phase Three
of the Y2K program.
We have evaluated and have replaced or have tested modifications for the
majority of such systems. We believe that we will complete the remaining
critical corrective actions, including testing, by the end of 1999.
Third Party Suppliers and Customers. We have contacted the majority of our
key suppliers and contract manufacturers to assess the possible effects of their
Year 2000 readiness on our business. Although many of these suppliers and
contract manufacturers have notified us that they have been addressing the
problem, some of them have not provided specific assurance regarding the Year
2000 compliance of their systems and software. Our reliance on suppliers and
contract manufacturers and, therefore, on the proper functioning of their
information systems and software, means that failure of such key suppliers and
contract manufacturers to address Year 2000 issues could have a material impact
on our operations and financial results.
In addition to our suppliers and contract manufacturers, we rely on a large
variety of business enterprises such as customers, creditors, financial
organizations, and domestic and international governmental entities for the
accurate exchange of data. Any disruption in the computer systems of any of
these third parties could materially and adversely affect us.
Summary. We have not yet completed detailed contingency plans for the Year
2000 issues, but, based on the results of the continuing assessment of our
internal systems and the audit of our third party suppliers and customers, we
will evaluate the need for and implement contingency plans.
Many of our products, systems, suppliers and customers address markets that
are vulnerable to technological issues involving the Year 2000, therefore
substantially all of our revenues may be at risk. Despite our efforts to address
the Year 2000 impact on our products, internal systems and business operations,
the Year 2000 issue may result in a material disruption of our business or have
a material adverse effect on our business, financial condition or results of
operations.
MATERIAL CHANGES
During the second quarter of fiscal year 2000, the Company was unable to
meets its obligations under its equipment notes payable and certain of its
capital leases. These instances of non-payment put the Company in default of
these agreements and in default of the revolving credit facility entered into in
April 1999 due to a cross default clause in the revolving credit facility
agreement. The Company has renegotiated the payment terms under the equipment
notes payable amounting to $1,292,000 and capital lease obligations with an
aggregate balance of $3,047,000 as at December 26, 1999. However, the Company
has been unable to renegotiate the payment terms under one capital lease
obligation amounting to $927,000 as at December 26, 1999. As of January 20,
2000, the lessor has not required acceleration of
-11-
<PAGE> 12
such obligation and management intends to continue to pursue renegotiated
payment terms. As such, as of January 20, 2000, the Company remains in default
of the revolving credit facility entered into subsequent to March 28, 1999 and
capital lease obligations with an aggregate total balance of $5,909,000 as at
December 26, 1999 due to cross default clauses in these agreements. As a result,
the Company may not be able to continue to draw on unused amounts under the
revolving credit facility which could significantly and adversely impact the
Company ability to continue as a going concern.
If the Company is unable to successfully complete its remaining negotiations
with its creditors to reschedule the payment terms on its capital lease
obligation, or if the creditors of the remaining obligations in default under
cross default clauses exercise their rights to accelerate the payment terms,
this could significantly and adversely impact the Company's ability to continue
as a going concern.
As evidenced by the instances of non-payment of certain obligations
discussed previously, the Company has minimal financial resources and operating
needs are funded principally from the collection of accounts receivable. Should
the cash flow from accounts receivable be lessened or interrupted by slow
collections or by a decrease in revenue generation, the Company could very
quickly find itself again unable to meet its obligations. In addition, our cash
balance has decreased over each of the last several quarters. As of December 26,
1999 we had cash and cash equivalents of approximately $631,000. If we continue
to report operating losses and negative cash flow we will need to obtain
additional funding to remain in operation. There can be no assurance that such
funding will be available to us at reasonable rates, if at all. Management
believes that anticipated cash flow from operations and borrowings under the
Company's credit facilities will be adequate to satisfy its anticipated working
capital and capital equipment requirements through June 25, 2000.
In October 1999, the Company entered into a stock purchase agreement (the
"Agreement") under which Teamasia Semiconductors (India) Ltd., ("Teamasia"), a
corporation headquartered in India involved in the manufacturing and sale of
discrete semiconductor devices, purchased an aggregate of 16.7% of the Company's
common stock outstanding for consideration of $2,050,000. The transaction closed
during the quarter ending December 26, 1999. The sale of all of the shares and
therefore the receipt of all of the $2,050,000 was subject to the Company's
compliance with certain terms and conditions. The Company met such terms and
conditions and has received all of the $2,050,000. The agreement places certain
restrictions on the use of the funds received by the Company for the sale of
stock under the agreement. Under the agreement, Teamasia is also obligated to
place orders with the Company for wafer fabrication through the second fiscal
quarter of 2001.
On December 15, 1999, the Company and Teamasia entered into a second stock
purchase agreement (the "Phase Two Stock Purchase Agreement") under which
Teamasia will make an additional equity investment in the Company. After the
closing of the Phase Two Stock Purchase Agreement, Teamasia will have purchased
an aggregate total of approximately 5.5 million shares, bringing their total
equity ownership in the Company to approximately 61.9%. The Phase Two Stock
Purchase Agreement will be subject to approval by the shareholders of the
Company at a meeting which will also be the Company's annual meeting and will be
held during the first quarter of calendar 2000. If approved by the Company's
shareholders, the transaction contemplated by the Phase Two Stock Purchase
Agreement is expected to close shortly thereafter. During the period between
December 15, 1999 and the date of approval of the Phase Two Stock Purchase
Agreement, Teamasia is required to use reasonable efforts to provide the Company
with additional financing up to the amount of the purchase price upon
commercially reasonable terms, if the Company so requests. In order for the
Phase Two Stock Purchase Agreement to be
-12-
<PAGE> 13
approved, the Company must receive approval of the Phase Two Stock Purchase
Agreement from its shareholders and all other required governmental approvals
and must make certain amendments to its Articles of Incorporation. Such loan, if
made, shall be repaid at the closing of the Phase Two Stock Purchase Agreement.
During the period between the approval date and the date of the closing of the
Phase Two Stock Purchase Agreement, if the Company so requests, Teamasia is
required to provide the Company with additional financing up to the amount of
the purchase price upon commercially reasonable terms. Such amount shall be
repaid at the closing of the Phase Two Stock Purchase Agreement.
If the shareholders of the Company do not approve this transaction with
Teamasia or the transaction does not close for some other reason, the Company's
liquidity could be adversely affected.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the Shares by the Selling
Stockholders in the Offering; all proceeds will go to the Selling Stockholders.
MARKET PRICES OF COMMON EQUITY, DIVIDEND POLICY
AND RELATED STOCKHOLDER MATTERS
Our Common Stock was traded on the Nasdaq National Market under the symbol
"IMPX". As of April 7, 1999, our Common Stock began trading on the Nasdaq
SmallCap Market. The following tables set forth the high and the low last
reported sales price for the Common Stock as reported by the Nasdaq National
Market. All share price figures reflect the 1-for-10 reverse split that occurred
during the fiscal year.
<TABLE>
<CAPTION>
FISCAL YEAR END MARCH 28, 1999 FISCAL YEAR END MARCH 29, 1998
------------------------------ ------------------------------
HIGH LOW HIGH LOW
---- --- ---- ---
<S> <C> <C> <C> <C>
First Quarter $15.31 $9.06 $21.88 $15.94
Second Quarter $ 9.37 $3.12 $19.06 $13.75
Third Quarter $ 6.56 $1.88 $17.50 $ 6.25
Fourth Quarter $ 7.81 $3.12 $15.31 $ 6.88
</TABLE>
We intend to retain any future earnings for the use in our business and,
accordingly, do not anticipate paying any cash dividends on our Common Stock in
the foreseeable future.
As of January 19, 2000, there were approximately 889 shareholders of record
(not including beneficial holders of stock held in street name) of the Company's
Common Stock, which closed at $4.44 per share on the Nasdaq SmallCap Market as
of that date.
-13-
<PAGE> 14
SELLING STOCKHOLDERS
527,000 shares of the Common Stock being offered hereby are being offered
for the account of certain stockholders who purchased the Common Stock as part
of a private placement in February 1999. The remaining 20,220 shares of the
Common Stock being offered hereby are being offered for the account of Gerbsman
Partners, who acquired a warrant to purchase such shares on November 4, 1999.
The following table sets forth certain information as of January 19, 2000 with
respect to the Selling Stockholders.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
COMMON SHARES COMMON SHARES
BENEFICIALLY NUMBER OF BENEFICIALLY
OWNED PRIOR TO SHARES BEING OWNED AFTER
BENEFICIAL OWNERS OFFERING OFFERED OFFERING
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Pitt & Co. -- Gruber & McBaine Capital Mgmt 18,333 18,333 0
Jon Gruber & Linda Gruber JT TEN 18,333 18,333 0
Hare & Co -- Gruber & McBaine Capital Mgmt 16,667 16,667 0
Lagunitas Partners LP 80,000 80,000 0
Gruber & McBaine International 26,667 26,667 0
J. Patterson McBaine 6,667 6,667 0
Bay Area Microcap Fund c/o William Smart 77,778 77,778 0
Roy L. Rogers TR Roy L. Rogers & Ruth Rogers Unit
Trust UA 9/28/99 61,000 33,333 27,667
Roy L. Rogers TR Rogers Family Trust DTS 1/21/81 71,500 49,222 22,278
Westfield Performance Fund c/o Westfield Capital 77,778 77,778 0
Compass Technology Partners, L.P. c/o David Arscott 33,334 33,334 0
Compass Chicago Partners, L.P. c/o David Arscott 22,222 22,222 0
Howard & Barbara Miller, TR The Miller Trust DTD 9/30/87 22,222 22,222 0
Gerald S & Jeanne L Cassili TR FBO Cassili 1995
UNITRUST U/A 11/17/95 22,300 7,300 15,000
Gerald S. & Jeanne L Cassili TR 10/15/96 the Cassili
Revocable Trust 31,922 14,922 17,000
California Bank and Trust, CUST FBO Jonathan Andron Roth
IRA A/C #69-1123-15 11,111 11,111 0
Bill Welling TR FBO Welling Family Living Trust
UA 01/23/90 11,111 11,111 0
Gerbsman Partners 20,220 20,220 0
</TABLE>
-14-
<PAGE> 15
PLAN OF DISTRIBUTION
Resales of the shares by the Selling Stockholders may be made on the Nasdaq
SmallCap Market, in the over-the-counter market or in private transactions. The
shares will be offered for sale on terms to be determined when the agreement to
sell is made or at the time of sale, as the case may be. The Selling
Stockholders may sell some or all of the shares in transactions involving
broker-dealers who may act solely as agent and or may acquire shares as
principal. Broker-dealers participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if they act as agent for
the purchaser of such shares, from such purchaser), such commissions computed in
appropriate cases in accordance with the applicable rules of NASDAQ, which
commissions may be at negotiated rates where permissible under such rules.
Participating broker-dealers may agree with the Selling Stockholders to sell a
specific number of shares at a stipulated price per share and, to the extent
such broker-dealer is unable to do so acting as agent, for the Selling
Stockholders to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer's commitment to the Selling Stockholders. Any such
sales may be by block trade.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company and the Selling Stockholders by Orrick, Herrington &
Sutcliffe LLP, San Francisco, California, with respect to the 20,220 shares
being offered by Gerbsman Partners and by Venture Law Group, Menlo Park,
California, with respect to the other 527,000 shares.
EXPERTS
The financial statements as of March 28, 1999 and March 29, 1998 and for
each of the three years in the period ended March 28, 1999 incorporated in this
Registration Statement on Form S-3 by reference have been so incorporated in
reliance on the report (which contains an explanatory paragraph relating to the
Company's ability to continue as a going concern as described in Note 10 to the
financial statements) of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
-15-
<PAGE> 16
================================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY SELLING STOCKHOLDER. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
----------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Where You Can Find More Information .................................... 3
Information Incorporated by Reference .................................. 3
The Company ............................................................ 4
RISK FACTORS ........................................................... 4
Material changes ....................................................... 11
Use of Proceeds ........................................................ 13
Market Prices of Common Equity, Dividend Policy and Related
Stockholder Matters ................................................ 13
Selling Stockholders ................................................... 14
Plan of Distribution ................................................... 15
Legal Matters .......................................................... 15
Experts ................................................................ 15
</TABLE>
547,220 SHARES
IMP, INC.
COMMON STOCK
-------------
PROSPECTUS
-------------
JANUARY 25, 2000
================================================================================
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Registrant in connection with the distribution of the Common Stock being
registered. All amounts are estimated, except the SEC registration fee, the NASD
filing fee and the Nasdaq SmallCap Market application fee:
<TABLE>
<S> <C>
SEC registration fee .................... $ 614.00
Accounting fees ......................... $30,000.00
Legal fees and expenses ................. $15,000.00
Miscellaneous ........................... $ 1,500.00
Total ................................. $47,114.00
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IX of the Registrant's Certificate of Incorporation provides that
directors of the Registrant shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, to the fullest extent permitted by the General Corporation Law of the
State of Delaware. Article VII, Section 7 of the Registrant's Bylaws provides
for indemnification of officers and directors to the full extent and in the
manner permitted by Delaware law. Section 145 of the Delaware General
Corporation Law makes provision for such indemnification in terms sufficiently
broad to cover officers and directors under certain circumstances for
liabilities arising under the Securities Act of 1933.
The Registrant has entered into indemnification agreements with each
director which provide indemnification under certain circumstances for acts and
omissions which may not be covered by any directors' and officers' liability
insurance.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
3.1 Restated Certificate of Incorporation. Incorporated by
reference from an identically numbered exhibit filed with the
Company's Annual Report on Form 10-K for the year ended March
26, 1989 filed with the Securities and Exchange Commission on
June 26, 1989.
3.2 Certificate of Amendment to Restated Certificate of
Incorporation. Portions incorporated by reference from an
identically numbered exhibit filed with the Company's
Amendment to the Annual Report on Form 10-K for the year ended
March 27, 1994 filed with the Securities and Exchange
Commission on July 6, 1994.
</TABLE>
II-1
<PAGE> 18
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
3.3 Registrant's Bylaws. Incorporated by reference to exhibit
number 3.2 filed with the Company's Registration Statement on
Form S-1 (File No. 33-13600) declared effective by the
Securities and Exchange Commission on June 10, 1987.
5.1(a) Opinion of Orrick, Herrington & Sutcliffe LLP as to legality
of 20,220 shares of Common Stock, including consent.
5.1(b) Opinion of Venture Law Group as to legality of 527,000 shares
of Common Stock, including consent.
23.1 Independent Accountant's Consent.
23.2(a) Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit
5.1(a)).
23.2(b) Venture Law Group (See Exhibit 5.1(b)).
24.1 Powers of Attorney (see Page II-4).
</TABLE>
ITEM 17. UNDERTAKINGS
A. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the provisions described in
Item 15 above, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
B. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
II-2
<PAGE> 19
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment to those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
C. The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offering therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(2) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on this 21st day of
January, 2000.
IMP, INC.
By: /s/ Brad Whitney
------------------------------------------------
Brad Whitney
Chief Executive Officer, President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints each of Brad Whitney and Zvi Grinfas, with the
power of substitution, his attorney-in-fact, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or their substitutes, may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Brad Whitney President, Chief Executive Officer January 21, 2000
- ------------------------------- (Principal Executive Officer) and
Brad Whitney Director
/s/ Zvi Grinfas Chairman of the Board, Vice January 21, 2000
- ------------------------------- President, Chief Financial Officer
Zvi Grinfas (Principal Financial Officer and
Principal Accounting Officer), and
Director
/s/ Subbarao Pinamaneni Director January 21, 2000
- -------------------------------
Subbarao Pinamaneni
/s/ Bernard V. Vonderschmitt Director January 21, 2000
- -------------------------------
Bernard V. Vonderschmitt
</TABLE>
II-4
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
3.1 Restated Certificate of Incorporation. Incorporated by
reference from an identically numbered exhibit filed with the
Company's Annual Report on Form 10-K for the year ended March
26, 1989 filed with the Securities and Exchange Commission on
June 26, 1989.
3.2 Certificate of Amendment to Restated Certificate of
Incorporation. Portions incorporated by reference from an
identically numbered exhibit filed with the Company's
Amendment to the Annual Report on Form 10-K for the year ended
March 27, 1994 filed with the Securities and Exchange
Commission on July 6, 1994.
3.3 Registrant's Bylaws. Incorporated by reference to exhibit
number 3.2 filed with the Company's Registration Statement on
Form S-1 (File No. 33-13600) declared effective by the
Securities and Exchange Commission on June 10, 1987.
5.1(a) Opinion of Orrick, Herrington & Sutcliffe LLP as to legality
of 20,220 shares of Common Stock, including consent.
5.1(b) Opinion of Venture Law Group as to legality of 527,000 shares
of Common Stock, including consent.
23.1 Independent Accountant's Consent.
23.2(a) Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit
5.1(a)).
23.2(b) Venture Law Group (See Exhibit 5.1(b)).
24.1 Powers of Attorney (see Page II-4).
</TABLE>
<PAGE> 1
[ORRICK, HERRINGTON & SUTCLIFFE LLP LETTERHEAD]
EXHIBIT 5.1(a)
January 25, 2000
IMP, Inc.
2830 North First Street
San Jose, CA 95183-2071
Re: IMP, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with
a proposed sale by certain stockholders (the Gerbsman Partners) of IMP, Inc., a
Delaware corporation (the "Company") of up to 20,220 shares (the "Shares") of
common stock, $0.01 par value (the "Common Stock") pursuant to a Registration
Statement on Form S-3. The Shares are to be issued upon exercise of a warrant
granted to the Gerbsman Partners on November 4, 1999.
We have examined instruments, documents, and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy, and completeness of the information, representations,
and warranties contained in the records, documents, instruments, and
certificates we have reviewed.
Based on such examination, we are of the opinion that upon the
exercise of the warrant and the payment of the exercise price thereunder, the
shares to be issued and covered by the Registration Statement will be legally
issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the above-referenced Registration Statement and to the use of our name wherever
it appears in said Registration Statement, including the Prospectus constituting
a part thereof, as originally filed or as subsequently amended or supplemented.
In giving such consent, we do not consider that we are "experts" within the
meaning of such term as used in the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 1
[VENTURE LAW GROUP LETTERHEAD]
EXHIBIT 5.1(b)
January 25, 2000
IMP, Inc.
2830 North First Street
San Jose, CA 95183-2071
Re: IMP, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with
a proposed sale by certain stockholders (the "Selling Stockholders") of IMP,
Inc., a Delaware corporation (the "Company") of up to 527,000 shares (the
"Shares") of common stock, $0.01 par value (the "Common Stock") pursuant to a
Registration Statement on Form S-3. The Shares were issued to the Selling
Stockholders pursuant to a private placement in early 1999.
We have examined instruments, documents, and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy, and completeness of the information, representations,
and warranties contained in the records, documents, instruments, and
certificates we have reviewed.
Based on such examination, we are of the opinion that the
currently issued and outstanding Shares covered by the Registration Statement
are legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the above-referenced Registration Statement and to the use of our name wherever
it appears in said Registration Statement, including the Prospectus constituting
a part thereof, as originally filed or as subsequently amended or supplemented.
In giving such consent, we do not consider that we are "experts" within the
meaning of such term as used in the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Venture Law Group
VENTURE LAW GROUP
A Professional Corporation
JYS
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT ACCOUNTANT'S CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated June 12, 1999, except Note 10 which is
as of December 31, 1999, relating to the financial statements which appears in
IMP, Inc.'s Annual Report on Form 10-K/A for the year ended March 28, 1999. We
also consent to the reference to us under the heading "Experts" in such
Registration Statement.
PRICEWATERHOUSECOOPERS LLP
San Jose, California
January 21, 2000
