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EXHIBIT 2.1(b)
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
ADAPTEC, INC. AND
CERTAIN SHAREHOLDERS OF FUTURE DOMAIN CORPORATION
July 13, 1995
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase and Sale of Company Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Basic Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Deliveries at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Representations and Warranties Concerning the Transaction . . . . . . . . . . . . . . . 3
3.1 Representations and Warranties of the Sellers . . . . . . . . . . . . . . . . . 3
3.2 Representations and Warranties of The Buyer . . . . . . . . . . . . . . . . . . 4
4. Pre-Closing Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Notice of Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Post-Closing Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Conditions to Obligation to Close . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Conditions to the Buyer's Obligation to Close . . . . . . . . . . . . . . . . . 6
6.2 Conditions to the Sellers' Obligation . . . . . . . . . . . . . . . . . . . . . 6
7. Survival of Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . 7
8. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.1 Termination of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.1 Press Releases and Public Announcements . . . . . . . . . . . . . . . . . . . . 7
9.2 No Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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TABLE OF CONTENTS
(CONTINUED)
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9.4 Succession and Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.9 Forum Selection; Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . 9
9.10 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.12 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.13 Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.14 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.15 Incorporation of Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . 10
9.16 Sellers' Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.17 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
EXHIBITS
Exhibit 3.1 Sellers' Disclosure Schedule
Exhibit 3.2 Buyer's Disclosure Schedule
Exhibit 6.1.4 General Release
Exhibit 6.2.4 Opinion of Counsel for Buyer
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is entered into as of July 13, 1995, by
and among certain holders (the "Sellers") of Common Stock of FUTURE DOMAIN
CORPORATION, a California corporation (the "Company") which are signatories
hereto, and ADAPTEC, INC., a California corporation (the "Buyer"). The
Company, the Sellers and the Buyer are sometimes referred to herein
individually as a "Party" and collectively as the "Parties."
RECITALS
The Sellers in the aggregate own 1,146,020 shares of the Company's
common stock, representing approximately 12.505% of the outstanding capital
stock of the Company assuming conversion into common stock of all outstanding
preferred stock.
The shareholders who own the remaining 87.495% of the Company's
capital stock assuming conversion into common stock of all outstanding
preferred stock (the "Majority Shareholders") are simultaneously entering into
a separate stock purchase agreement with the Buyer and the Company (the
"Majority Shareholder Agreement").
This Agreement contemplates a transaction in which the Buyer will
purchase from the Sellers, and the Sellers will sell to the Buyer, all of the
outstanding capital stock of the Company owned by the Sellers in return for
cash.
The consummation of this Agreement and the sale of the shares
hereunder is intended to occur concurrently with the sale of the shares by the
Majority Shareholders under the Majority Shareholder Agreement, such that upon
the closing of both transactions, the Buyer will own all of the outstanding
capital stock of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
AGREEMENT
1. Certain Definitions. As used in this Agreement the following
terms have the following meanings (terms defined in the singular to have a
correlative meaning when used in the plural and vice versa).
"Affiliate" of a Person means any other Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with such Person.
"Confidential Information" means any information concerning the
business and affairs of the Company that is designated by the Company as
confidential except for information which (i) was
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known to, or had been (or was in the process of being) independently developed
by, Buyer or an Affiliate of Buyer prior to the receipt thereof from the
Company; (ii) was at the time of disclosure by the Company a matter of public
knowledge through no fault of the Buyer or an Affiliate of Buyer; or (iii) was
or hereafter is obtained by the Buyer or an Affiliate of Buyer from a third
party under no duty of confidentiality to the Company.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable, (c) purchase
money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business
and not incurred in connection with the borrowing of money.
2. Purchase and Sale of Company Shares.
2.1 Basic Transaction. Subject to the terms and
conditions of this Agreement, the Buyer agrees to purchase from each of the
Sellers, and each of the Sellers agrees to sell to the Buyer, all of his, her
or its shares of common stock of the Company (the "Company Shares") at the
Closing for the amount of $2.72783416 for each of the Company Shares then held
for a total payment of $3,126,152.50 for all of such shares, in cash, payable
by Buyer's check, subject to the Sellers' delivery instructions as to certain
portions of the payment as set forth in Section 2.3 below. The total purchase
price shall be allocated among the Sellers in proportion to their respective
holdings of Company Shares as set forth in Section 3.1.5 of the Sellers'
Disclosure Schedule.
2.2 The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, XX 00000-0000, on July 13, 1995, commencing at 9:00 a.m. local
time. The date on which the Closing occurs is referred to herein as the
"Closing Date".
2.3 Deliveries at the Closing. At the Closing, (i) each
of the Sellers will deliver to the Buyer stock certificates representing all of
such Seller's Company Shares, endorsed in blank or accompanied by duly executed
assignment documents; (ii) each of the Sellers will deliver to the Buyer the
document referred to in Section 6.1.4 below; (iii) the Buyer will deliver to
the Sellers the document referred to in Section 6.2.3 below; and (iv) the
Buyer will deliver the payment for the Company Shares specified in
Section 2.1.1 above as follows: (A) $65,149.02 to L.H. Friend, Weinress,
Xxxxxxxx and Xxxxxxx ("X.X. Friend"), (B) $12,504.61 to Xxxxxx Godward Xxxxxx
Xxxxxxxxx & Xxxxx, plus the Sellers' share of the related costs in the amount
specified by the Company to the Buyer at the Closing and (C) the remainder to
the Sellers, pro rata, based on their respective holdings of Company Shares.
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3. Representations and Warranties Concerning the Transaction
3.1 Representations and Warranties of the Sellers. Each
of the Sellers represents and warrants to the Buyer that the statements
contained in this Section 3.1 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 3.1) with respect to such Seller, except as
set forth in the disclosure schedule delivered by the Sellers to the Buyer on
the date hereof (and initialed by the Sellers and the Buyer), a copy of which
is attached hereto as Exhibit 3.1 (referred to herein as the "Sellers'
Disclosure Schedule"). The Sellers' Disclosure Schedule will be arranged in
paragraphs corresponding to the numbered paragraphs contained in this Section
3.1.
3.1.1 Organization of Certain Sellers. If the
Seller is a corporation, the Seller is duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation.
3.1.2 Authorization of Transaction. The Seller has
full power and authority to execute and deliver this Agreement, to consummate
the transactions contemplated hereunder and to perform such Seller's
obligations hereunder and no other proceedings on the part of such Seller are
necessary to authorize the execution, delivery and performance of this
Agreement. This Agreement constitutes the valid and legally binding obligation
of the Seller, enforceable in accordance with its terms and conditions. The
Seller need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
3.1.3 Noncontravention. Neither the execution and
the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, nor the performance of the Seller's obligations hereunder,
will (A) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller is subject, or
(B) (i) conflict with, (ii) result in a breach of, (iii) constitute a default
under, (iv) result in the acceleration of, (v) create in any party the right to
accelerate, terminate, modify, or cancel, or (vi) require any notice under, any
agreement, contract, lease, license, instrument, franchise, permit or other
arrangement to which the Seller is a party or by which such Seller is bound or
to which any of such Seller's assets is subject.
3.1.4 Fees. Except as provided in (i) the
Engagement Agreement dated September 14, 1994 between the Company and L.H.
Friend and (ii) Section 9.12 of this Agreement, the Seller has no liability or
obligation to pay any fees or commissions to any broker, finder, agent or
attorney with respect to the transactions contemplated by this Agreement.
3.1.5 Company Shares. The Seller holds of record
and owns beneficially the number of Company Shares set forth next to such
Seller's name in Section 3.1.5 of the Sellers' Disclosure Schedule, free and
clear of any restrictions on transfer, taxes, Security Interests, options,
warrants,
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purchase rights, contracts, commitments, equities, claims, and demands and upon
delivery of the stock certificates representing the Company Shares at Closing
and payment therefor as provided in Section 2.1 above, Buyer will acquire valid
title thereto, free and clear of all Security Interests and restrictions on
transfer. The Seller is not a party to any option, warrant, purchase night, or
other contract or commitment that could require the Seller to sell, transfer,
or otherwise dispose of any capital stock of the Company (other than this
Agreement). The Seller is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
the Company.
3.2 Representations and Warranties of the Buyer. The
Buyer represents and warrants to the Sellers that the statements contained in
this Section 3.2 are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3.2), except as set forth in the disclosure schedule
delivered by the Buyer to the Sellers on the date hereof (and initialed by the
Buyer and the Sellers), a copy of which is attached hereto as Exhibit 3.2
(referred to herein as the "Buyer's Disclosure Schedule"). The Buyer's
Disclosure Schedule will be arranged in paragraphs corresponding to the
numbered paragraphs contained in this Section 3.2.
3.2.1 Organization of the Buyer. The Buyer is a
corporation duly organized, validity existing, and in good standing under the
laws of the jurisdiction of its incorporation.
3.2.2 Authorization of Transaction. The Buyer has
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of the
Buyer, enforceable in accordance with its terms and conditions. The Buyer need
not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
3.2.3 Noncontravention. Neither the execution and
the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Buyer is subject
or any provision of its charter or bylaws, or (B) (i) conflict with, (ii)
result in a breach of, (iii) constitute a default under, (iv) result in the
acceleration of, (v) create in any party the right to accelerate, terminate,
modify, or cancel, or (vi) require any notice under, any agreement, contract,
lease, license, instrument, or other arrangement to which the buyer is a party
or by which it is bound or to which any of its assets is subject.
3.2.4 Brokers' Fees. Except with respect to an
investment banking fee to be paid to Bear, Xxxxxxx & Co., Inc., the Buyer has no
liability or obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this Agreement for
which any Seller could become liable or obligated.
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3.2.5 Investment. The Buyer is acquiring the
Company Shares for investment and not with a view to or for sale in connection
with any distribution thereof within the meaning of the Securities Act of 1933,
as amended (the "Securities Act").
4. Pre-Closing Covenants. With respect to the period between the
execution of this Agreement and the Closing:
4.1 General. Each of the Parties will use his, her or
its reasonable best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of the
closing conditions set forth in Section 6 below).
4.2 Notice of Developments. Each Party will give prompt
written notice to the other of any material adverse development causing a
breach of any of her or its own representations and warranties in Section 3
above. No disclosure by any Party pursuant to this Section 4.2, however, shall
be deemed to amend or supplement Sellers' Disclosure Schedule or Buyer's
Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
4.3 Exclusivity. None of the Sellers will (i) solicit,
initiate, or encourage the submission of any proposal or offer from any Person
relating to the acquisition of any capital stock or other voting securities, or
any substantial portion of the assets, of the Company (including any
acquisition structured as a merger, consolidation, or share exchange) or (ii)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any Person to do or seek any of the
foregoing. None of the Sellers will transfer or offer to transfer any of his,
her or its Company Shares. None of the Sellers will vote their Company Shares
in favor of any such acquisition structured as a merger, consolidation, or
share exchange.
5. Post-Closing Covenants. With respect to the period following
the Closing:
5.1 General. In case at any time after the Closing any
further action is necessary to carry out the purposes of this Agreement, each
of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party
reasonably may request, all at the sole cost and expense of the requesting
Party (unless the requesting Party is entitled to indemnification therefor
under Section 7 below).
5.2 Confidentiality. Each of the Sellers will treat and
hold as such all of the Confidential Information, refrain from using any of the
Confidential Information except in connection with this Agreement, and deliver
promptly to the Buyer or destroy, at the request and option of the Buyer, all
tangible embodiments (and all copies) of the Confidential Information which are
in her or its possession. In the event that any of the Sellers is requested or
required (by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or similar
process) to disclose any Confidential Information, that Person will
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notify the Buyer promptly of the request or requirement so that the Buyer may
seek an appropriate protective order or waive compliance with the provisions of
this Section 5.2. If, in the absence of a protective order or the receipt of a
waiver hereunder, any of the Sellers and directors and officers of the Company
is, on the advice of counsel, compelled to disclose any Confidential
Information to any tribunal or else stand liable for contempt, that Person may
disclose the Confidential Information to the tribunal; provided, however, that
such disclosing Person shall use her or its reasonable best efforts to obtain,
at the reasonable request of the Buyer, an order or other assurance that
confidential treatment way be accorded to such portion of the Confidential
Information required to be disclosed as the Buyer shall designate.
6. Conditions to Obligation to Close.
6.1 Conditions to the Buyer's Obligation to Close. The
obligation of the Buyer to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the following
conditions:
6 1.1 all of the conditions to the Buyer's
obligation to close under the Majority Shareholder Agreement shall have been
satisfied and such transaction shall have closed;
6.1.2 the representations and warranties set forth
in Section 3.1 above shall be true and correct in all respects at and as of the
Closing Date;
6.1.3 the Sellers shall have performed and complied
with all of their covenants hereunder in a respects through the Closing, and
all of the Sellers shall have tendered all of their Company Shares to the Buyer
at the Closing, and
6.1.4 each Seller shall have executed and delivered
a general release of any claims against the Company and its successors in the
form attached hereto as Exhibit 6.1.4.
The Buyer may waive any condition (in whole or in part) specified in
this Section 6 if it executes a writing so stating at or prior to the Closing.
6.2 Conditions to the Sellers' Obligation. The
obligation of the Sellers to consummate the transactions to be performed by
them in connection with the Closing is subject to satisfaction of the following
conditions:
6.2.1 all of the conditions to the Seller's
obligation to close under the Majority Shareholder Agreement shall have been
satisfied and such transaction shall have closed;
6.2.2 the representations and warranties set forth
in Section 3.2 above shall be true and correct in all respects at and as of the
Closing Date;
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6.2.3 the Buyer shall have performed and complied
with all of its covenants hereunder in all respects through the Closing; and
6 2.4 the Sellers shall have received from counsel
to the Buyer an opinion in form and substance as set forth in Exhibit 6.2.4
attached hereto, addressed to the Sellers, and dated as of the Closing Date.
The Sellers may waive any condition specified in this Section 6.2 if
they execute a writing so stating at or prior to the Closing.
7. Survival of Representations, Warranties and Covenants. All of
the representations and warranties of the Parties contained in Section 3 shall
survive the Closing (even if the damaged Party knew or had reason to know of
any misrepresentation or breach of warranty at the time of Closing). The
covenants and agreements in this Agreement shall survive except to the extent
they are officially limited by their terms.
8. Termination.
8.1 Termination of the Agreement. Certain of the Parties
may terminate this Agreement as provided below:
8.1.1 the Buyer and the Sellers may terminate this
Agreement as to all Parties by mutual written consent at any time prior to the
Closing; and
8.1.2 the Buyer may terminate this Agreement by
giving written notice to the Sellers' Agent at any time prior to the Closing
(A) in the event any of the Sellers has breached any representation, warranty,
or covenant contained in this Agreement in any respect, the Buyer has notified
the Sellers' Agent of the breach, and the breach has continued without cure for
a period of thirty (30) days after the notice of breach or (B) if the Closing
shall not have occurred on or before July 14, 1995, by reason of the failure of
any condition precedent under Section 6.1 hereof (unless the failure results
primarily from the Buyer itself breaching any representation, warranty, or
covenants contained in this Agreement)
8.2 Effect of Termination. If any Party terminates this
Agreement pursuant to Section 8.1 above, all rights and obligations of the
Parties hereunder shall terminate without any liability of any Party to any
other Party (except for any liability of any Party then in breach); provided,
however, that the confidentiality provisions contained in Section 5.2 above
shall survive termination.
9. Miscellaneous.
9.1 Press Releases and Public Announcements. No Party
shall issue any press release or make any public announcement relating to the
subject matter of this Agreement prior to the Closing without the prior written
approval of the Buyer and the Sellers' Agent; provided, however,
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that any Party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its
reasonable best efforts to advise the other Parties prior to making the
disclosure).
9.2 No Third-Party Beneficiaries. This Agreement shall
not confer any rights or remedies upon any Person other than the Parties and
their respective successors and permitted assigns.
9.3 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement among the
Parties and supersedes any prior understandings, agreements, or representations
by or among the Parties, written or oral, to the extent they related in any way
to the subject matter hereof
9.4 Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign either this
Agreement or any of her or its rights, interests, or obligations hereunder
without the prior written approval of the Buyer and the Sellers' Agent;
provided, however, that the Buyer may (i) assign any or all of its rights and
interests hereunder to one or more of its Affiliates and (ii) designate one or
more of its Affiliates to perform its obligations hereunder (in any or all of
which cases the Buyer nonetheless shall remain responsible for the performance
of all of its obligations hereunder).
9.5 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
9.6 Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.7 Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly given if
(and then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid and addressed to the intended
recipient as set forth below:
If to the Sellers: Xxxx X. and Xxxxxxxx X. Xxxxxxxx
X.X. Xxx 0000-000
Xxxxxxx Xxxxx, XX 00000
Copy to: Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx, Esq.
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If to the Buyer: Adaptec, Inc.
000 X. Xxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. O'Xxxxx
Xxxxxx Xxxxx Xxxxx, Esq.
Copy to: Wilson, Sonsini, Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
9.8 Governing Law. This Agreement shall be governed by
and construed in accordance with the domestic laws of the State of California
without giving effect to any choice or conflict of law provision or rule
(whether of the State of California or any other that would cause the
application of the laws of any jurisdiction other than the State of California.
9.9 Forum Selection; Consent to Jurisdiction. All
disputes arising out of or in connection with this Agreement shall be solely
and exclusively resolved by a court of competent jurisdiction in the State of
California. The parties hereby consent to the jurisdiction of the Superior
Court of the State of California and the United States District Courts of
California and waive any objections or rights as to forum nonconveniens, lack
of personal or similar grounds with respect to any dispute relating to this
Agreement.
9.10 Amendments and Waivers. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by the Buyer and the Sellers' Agent. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior to
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent occurrence.
9.11 Severability. Any term or provision of this
Agreement that is invalid or unenforceable in any situation in any shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
-9-
13
9.12 Expenses. Each of the Sellers and the Buyer will
bear her or its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby. The Sellers will bear, pro rata with the Majority Shareholders, any
and all costs and expenses of the Company (including any of its legal fees and
expenses) In connection with this Agreement or any of the transactions
contemplated hereby. To the extent that the amounts paid at the Closing under
clauses (iv)(A), (B) and (C) of Section 2.3 of this Agreement are insufficient
to satisfy the obligations of the Sellers and the Company to the respective
payees, the Sellers shall pay any deficiency on a pro rata basis with the
Majority Shareholders.
9.13 Transfer Taxes. Each Seller shall pay all sales,
use, stamp, transfer and like taxes, if any, required to be paid in connection
with the transfer of her or its Company Shares hereunder.
9.14 Construction. The Parties have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship
of any of the provisions of this Agreement. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without limitation.
9.15 Incorporation of Exhibits and Schedules. The
Exhibits and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof
9.16 Sellers' Representative. The Sellers hereby appoint
Xxxxxxxx Xxxxxxxx as their agent and representative (the "Sellers' Agent") for
the purposes of (i) representing, acting for and binding each of them for all
purposes of this Agreement, including without limitation, the settlement of any
controversies or disagreements between Buyer and Sellers hereunder; (ii)
receiving or giving any notices to or from Sellers hereunder; and (iii)
communicating with the Buyer or the Company as to any matters relating to this
Agreement. In the event Xxxxxxxx Xxxxxxxx, is unable, unwilling or unavailable
to serve as Sellers' Representative, the Sellers hereby appoint Xxxx Xxxxxxxx
to serve in such capacity, if he is able, willing and available, and if not,
someone appointed to serve in such capacity by holders of 51% of the voting
power of the Company Shares held by the Sellers immediately prior to Closing.
The Buyer shall be entitled to presumptively rely without further inquiry upon
all acts of, and communications from, the Sellers' Agent as being the
authorized actions and communications of the Sellers' Agent as approved by the
Sellers. The Sellers' Agent shall be entitled to take binding action on behalf
of the Sellers upon obtaining the approval of such Sellers who immediately
prior to the Closing owned at least 51% of the Company Shares held by the
Sellers immediately prior to the Closing. The Sellers' Agent shall not be
liable for any act done or omitted hereunder as Sellers' Agent while acting in
good faith, and any act done or omitted pursuant to the advice of counsel shall
be conclusive evidence of such good faith. The Sellers shall severally
indemnify the Sellers' Agent and hold such agent harmless against any loss,
liability or expense incurred without gross negligence or bad faith on the part
of the Sellers' Agent and arising out of or in
-10-
14
connection with any and all actions taken by the Sellers' Agent under the
provisions of this Section 9.16.
9.17 Attorneys' Fees. If any legal proceeding or other
action for fraud or Gross Negligence relating to this Agreement is brought or
otherwise initiated, the prevailing party shall be entitled to recover
reasonable attorneys fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
-11-
15
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title: Vice President and General Manager
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
[SEAL] /s/ XXXXX X. XXXXX
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
17
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
[SEAL] /s/ XXXXXXX XXXXXXX XXXXX XXXXXXX
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
18
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
[SEAL] /s/ XXXXXXX XXXXXXX XXXXX XXXXXXX
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
19
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
[SEAL]
By: /s/
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
20
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
[SEAL] /s/ XXXX X. XXXXXX
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
21
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
[SEAL] /s/ XXXXXXX XXXXXXXXXX
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
22
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
ADAPTEC, INC.
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees U/D/T
dtd January 22, 1981
CRUTTENDEN & COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxx
[SEAL] /s/ XXXXXXX XXXXXX
--------------------------------------------
Xxxxxxx Xxxxxx
-12-
23
EXHIBIT 3.2
BUYER'S DISCLOSURE SCHEDULE
No exceptions.
24
EXHIBIT 6.1.4
RELEASE AGREEMENT
The undersigned, pursuant to Section 6.1.4 of the Stock Purchase
Agreement dated as of July __, 1995 (the "Stock Purchase Agreement"), by and
between Adaptec, Inc., a California corporation ("Adaptec") and certain holders
of Common Stock of Future Domain Corporation, a California corporation (the
"Company") DOES HEREBY RELEASE, DISCHARGE AND ACQUIT FOREVER the Company and
each of its successors and assigns, from any and all demands, claims or other
liabilities (or potential demands, claims or liabilities) of every kind and
character whatsoever, arising in connection with any matter whatsoever
occurring on or prior to the date of this release, whether known or unknown,
suspected or unsuspected (collectively, the "Subject Claims"). The undersigned
acknowledges that such party has considered the possibility that such party may
not fully know the number or magnitude of all the Subject Claims or other
claims which such party has or may have against the Company or its successors
and assigns, but nevertheless, intends to assume the risk that such party is
releasing such unknown claims and agrees that this Agreement is a full and
final release of any and all Subject Claims and any other claims, and expressly
waives the benefits of Section 1542 of the California Civil Code which provides
that:
"A general release does not extend the release to claims which
the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
The undersigned understands and acknowledges the significance and
consequences of such specific waiver of Section 1542, and hereby assumes full
responsibilities for any injuries, damages or losses that each may incur as a
result of such waiver.
This release is given for good and valuable consideration received by
the undersigned and to induce Adaptec to consummate the transactions described
in the Stock Purchase Agreement. This
25
release shall remain in full force and effect without regard to the expiration
provisions under the Stock Purchase Agreement. Notwithstanding the generality
of the foregoing, the release granted hereby shall have no effect on claims
arising direct out of the Stock Purchase Agreement or upon transactions
subsequent to the date hereof.
EXECUTED this ___ day of ____________, 1995.
_______________________________
(Signature)
_______________________________
(Print Name)
-2-
26
EXHIBIT 6.2.4
OPINION OF COUNSEL FOR BUYER
To the Persons Listed on Exhibit A Hereto
Ladies and Gentlemen:
Reference is made to that certain Stock Purchase Agreement by and among
Adaptec, Inc., a California corporation (the "Company") and certain
shareholders (the "Sellers") of Future Domain Corporation, a California
corporation ("Future Domain") dated ______________, 19__ (the "Agreement"). The
Agreement provides for the sale and transfer by the Sellers of a minority of
the issued and outstanding stock of Future Domain to the Company (the
"Shares"). This opinion is rendered to you pursuant to Section 6.2.4 of the
Agreement, and all capitalized terms used herein have the meanings defined for
them in the Agreement unless otherwise defined herein.
We have acted as counsel for the Company in connection with the
negotiation of the Agreement and the effectuation of the stock purchase. As
such counsel, we have made such legal and factual examinations and inquiries as
we have deemed advisable or necessary for the purpose of rendering this
opinion. In addition, we have examined originals or copies of documents,
corporate records, and other writings that we consider relevant for the purpose
of this opinion. In such examination, we have assumed the genuineness of all
signatures on original documents, the conformity to original documents of all
copies submitted to us, the legal capacity of natural persons, and the due
execution and delivery of all documents by any party other than the Company
where due execution and delivery are a prerequisite to the effectiveness
thereof.
As used in this opinion, the expression "to our knowledge" with
reference to matters of fact means that, after an examination of documents made
available to us by the Company, and after inquiries of officers of the Company,
but without any further independent factual investigation, we find no reason to
believe that the opinions expressed herein are factually incorrect. Further,
the expression "to our knowledge," with reference to matters of fact, refers to
the current actual knowledge of the attorneys of this firm who have worked on
matters for the Company solely in connection with the Agreement and the
transactions contemplated thereby. Except to the extent expressly set forth
herein or as we otherwise believe to be necessary to our opinion, we have not
undertaken any independent investigation to determine the existence or absence
of any fact, and no inference as to our knowledge of the existence or absence
of any fact should be drawn from our representation of the Company.
The opinions hereinafter expressed are subject to the following
qualifications:
(a) We express no opinion as to the effect of rules of law
governing specific performance, injunctive relief or other equitable remedies;
(b) We express no opinion as to the effect of applicable
bankruptcy and other similar laws affecting the rights of creditors generally;
27
To the Persons Listed on Exhibit A hereto
_________________, 19__
Page 2
(c) We are members of the Bar of the State of California and we
are not expressing any opinion as to any matter relating to the laws of any
jurisdiction other than the federal laws of the United States of America and
the laws of the State of California.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of California. The Company has the
requisite corporate power necessary to enter into the Agreement and to
consummate the transactions contemplated thereby. The execution and delivery
of the Agreement by the Company and the consummation of the transactions
contemplated therein have been duly authorized by the Company's Board of
Directors, and no further corporate authorization is necessary on the part of
the Company.
2. The Agreement is a valid and binding obligation of the
Company, enforceable in accordance with its terms.
3. No approval, authorization, consent, order or action of, or
filing or registration with, any court, administrative agency or other
government authority (including, without limitation, under any Federal or State
securities laws) is required in connection with the execution, delivery and
performance of the Agreements by the Company, except the filing required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the expiration of
all applicable waiting periods thereunder, which events have occurred.
4. The execution and delivery of the Agreement by the Company
does not violate any provision of the Company's Articles of Incorporation, as
amended, or Bylaws, and does not constitute a material default under provisions
of any material agreement known to us to which the Company is a party or by
which it is bound.
5. To our knowledge, there is no litigation, proceeding or
controversy (including, without limitation, unsettled claim), pending or
threatened or anticipated by or against the Company relating to the
transactions contemplated by the Agreement nor, to our knowledge, are there any
judgments outstanding against the Company or to or by which the Company is or
may be subject or bound which might prevent the Company from consummating the
terms of the Agreement.
This opinion is solely for your benefit and is not to be made
available to or relied upon by any other person without our express prior
written consent.
Very truly yours,
WILSON, SONSINI, XXXXXXXX & XXXXXX
Professional Corporation
28
EXHIBIT A
Xxxxx X. Xxxxx
Xxxxxxx and Xxxxx Xxxxxxx, Co-Trustees
U/D/T dtd January 22, 1981
Cruttenden & Company
Xxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxx
