Exhibit 4.5
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 14th day of November 2000,
by and between Read-Rite Corporation (the "Company"), a corporation organized
under the laws of the State of Delaware, with its principal offices at 00000
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxxxx 00000, and the purchaser whose name and address
is set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company has authorized the sale of up to
2,700,000 shares of common stock (the "Shares"), par value $0.0001 per share
(the "Common Stock"), of the Company.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
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defined in Section 3), the Company shall sell to the Purchaser, and the
Purchaser shall buy from the Company, upon the terms and conditions hereinafter
set forth, the number of Shares (at the purchase price) shown below:
Price Per
Number Shares to Be Share In Aggregate
Purchased Dollars Price
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2,700,000 $7.00 $18,900,000
SECTION 3. Delivery of the Shares at the Closing. (a) The completion of the
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purchase and sale of the portion of the Shares to be purchased by the Purchaser
(the "Closing") shall occur on the date immediately following execution and
delivery of this Agreement at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000,
at such time and date to be agreed upon by the Company and the Purchaser (the
"Closing Date").
(b) At the Closing, the Company shall deliver to the Purchaser
two stock certificates registered in the name of the Purchaser, or in such
nominee name(s) as designated by the Purchaser in writing, with one certificate
representing 2,160,000 Shares and the other certificate representing 540,000
Shares. The name(s) in which the stock certificates are to be registered are set
forth in the Stock Certificate Questionnaire attached hereto as part of Appendix
I. Prior to the Purchaser's delivery of payment for the Shares, the Company
shall deliver via facsimile a copy of the stock certificates to be issued to the
Purchaser upon the Closing. The Company's obligation to complete the purchase
and sale of the Shares and deliver such stock certificates to the Purchaser at
the Closing shall be subject to the following conditions: (i) receipt by the
Company of same-day funds in the full amount of the purchase price for the
Shares being purchased hereunder; and (ii) the accuracy of the representations
and warranties made by the Purchaser as if made on the day of such Closing and
the fulfillment of those undertakings of the Purchaser to be fulfilled prior to
the Closing. The Purchaser's
obligation to accept delivery of such stock certificates and to pay for the
Shares evidenced thereby shall be subject only to the following conditions: (A)
the accuracy in all material respects of the representations and warranties made
by the Company herein and the fulfillment in all material respects of those
undertakings of the Company to be fulfilled prior to Closing and (B) the
delivery by Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the Company, to the
Purchaser of a legal opinion in substantially the form attached hereto as
Exhibit A.
SECTION 4. Representations and Warranties of the Company. The Company
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hereby represents and warrants as of the date hereof and as of the Closing to
the Purchaser as follows:
4.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Delaware and is in
good standing under such laws. The Company has all requisite corporate power to
own and operate its properties and assets, and to carry on its business as
presently conducted. The Company is qualified to do business as a foreign
corporation in the State of California. Such qualification is not presently
required in any other jurisdiction where a failure to so qualify would have a
material adverse effect on the business, financial position or results of
operations of the Company ("Material Adverse Effect").
4.2 Capitalization. The authorized capital stock of the Company
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consists of 160,000,000 shares of Common Stock and 4,000,000 shares of Preferred
Stock. Approximately 115,193,182 shares of Common Stock are issued and
outstanding. No shares of Preferred Stock are issued and outstanding. All such
issued and outstanding shares have been duly authorized and validly issued, and
are fully paid and nonassessable. Options to purchase 14,010,043 shares of the
Company's Common Stock are outstanding under all of the Company's stock option
plans, and 2,006,007 shares are available for future grant under these Plans.
The Company has issued 2,598,380 shares of Common Stock under its Employee Stock
Purchase Plan and 901,620 shares are available for future issuance. Except as
disclosed in the Company SEC Documents (as defined below), and with the
exception of certain shares of Common Stock, warrants, and other instruments
convertible or otherwise exchangeable into shares of Common Stock solely in
connection with third-party investment in a new business venture of the Company,
there are no other options, warrants, conversion privileges, or preemptive or
other rights or agreements presently outstanding to purchase or otherwise
acquire any authorized but unissued shares of the capital stock or other
securities of the Company.
4.3 Authority. The Company has full power and authority to execute
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and deliver this Agreement, and to consummate the transactions contemplated by
this Agreement. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the execution and delivery of, and the
consummation of the transactions contemplated by, this Agreement. This
Agreement, upon execution and delivery by the Company and assuming the due and
proper execution and delivery by the Purchaser, constitutes a legal, valid and
binding obligation of the Company, enforceable in accordance with its respective
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors rights generally, and (ii) the effect of rules of law
governing the availability of specific performance and other equitable remedies.
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4.4 Valid Issuance of Common Stock. The Common Stock to be sold
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hereby has been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, shall be duly authorized, validly issued,
fully paid and nonassessable, and shall be free of restrictions on transfer
other than restrictions on transfer under this Agreement and under applicable
state and federal securities laws. No preemptive rights, anti-dilution rights or
other rights to subscribe for or purchase exist with respect to the issuance and
sale of the Common Stock by the Company pursuant to this Agreement. No
stockholder of the Company has any right (which has not been waived or has not
expired by reason of lapse of time following the notification of the Company's
intent to file the Registration Statement (as defined below)) to request or
require the Company to register the sale of any shares owned by such stockholder
under the Securities Act of 1933, as amended (the "Securities Act"), in the
Registration Statement.
4.5 Governmental Consents. Other than compliance with the Securities
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Act and other state or federal securities laws, and such filings as may be
required to be made under such laws or with the National Association of
Securities Dealers (the "NASD"), which shall be complied with and made at or
prior to the Closing, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement.
4.6 Conflicts. The execution and delivery of this Agreement shall not
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conflict with or result in a material breach of the terms, conditions or
provisions of, or constitute a material default under, any material contract,
material covenant or material instrument under which the Company is now
obligated.
4.7 SEC Documents. The Company has filed each statement, annual,
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quarterly and other report, registration statement and definitive proxy
statement ("Company SEC Documents") required to be filed (other than preliminary
material) by the Company with the SEC. As of their respective filing dates, the
Company SEC Documents complied in all material respects with the requirements of
the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, and none of the Company SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not misleading,
except to the extent corrected by any subsequently filed Company SEC Document.
4.8 Changes. Since June 30, 2000, there has not been any event or
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condition that would reasonably likely result in a Material Adverse Effect.
4.9 Litigation. Other than as disclosed and discussed in the
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Company's annual filings with the SEC, there is no pending or, to the Company's
knowledge, threatened lawsuit, administrative proceeding, arbitration, patent or
licensing challenge or infringement, labor dispute or governmental investigation
to which the Company is a party or by which any material portion of its assets,
taken as a whole, may be bound, which, if adversely determined, would have a
Material Adverse Effect.
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SECTION 5. Representations and Warranties of the Purchaser. The Purchaser
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hereby represents and warrants as of the date hereof and as of the Closing to
the Company as follows:
5.1 Organization and Standing. The Purchaser is an independent state
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agency created under and validly existing under the laws of the State of
Wisconsin. The Purchaser has all requisite corporate power to own and operate
its properties and assets, and to carry on its business as presently conducted.
5.2 Authority. The Purchaser has full power and authority to execute
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and deliver, and to consummate the transactions contemplated by this Agreement.
All corporate action on the part of the Purchaser, its officers, directors and
stockholders necessary for the execution and delivery of, and the consummation
of the transactions contemplated by, this Agreement. This Agreement, upon
execution and delivery by the Purchaser and assuming the due and proper
execution and delivery by the Company, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable in accordance with its terms, except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors rights generally, and (ii) the effect of rules of law governing the
availability of equitable remedies.
5.3 Purchase Entirely for Own Account. This Agreement is made with
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the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Shares shall be acquired for investment for the Purchaser's
own account, not as a nominee or agent, and not with a view to the distribution
of any part thereof, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise taking an action that would
constitute a distribution of the same.
5.4 Disclosure of Information. The Purchaser has received all the
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information it considers necessary or appropriate for deciding whether to
purchase the Common Stock. The Purchaser further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Common Stock and the business,
properties, prospects and financial condition of the Company.
5.5 Investment Experience. The Purchaser acknowledges that it is able
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to fend for itself, can bear the economic risk of its investment, and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Common Stock. The
Purchaser has not been organized for the purpose of acquiring the Common Stock.
5.6 Accredited Investor. The Purchaser is an "accredited investor"
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within the meaning of Rule 501 of Regulation D, promulgated under the Securities
Act.
5.7 Restricted Securities. The Purchaser understands that the Shares
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it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. In this connection,
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the Purchaser represents that it is familiar with SEC Rule 144 or Rule 144A, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
SECTION 6. Survival of Representations, Warranties and Agreements.
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Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive until the third anniversary of the Closing.
SECTION 7. Covenants of the Company.
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7.1 Sale of Common Stock. The Company shall not, from the Closing
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Date until after the date which is 90 days after the Closing Date, sell (a)
shares of Common Stock at a price per share less than $7.00 or (b) options,
warrants, convertible securities or any other instruments convertible or
otherwise exchangeable into shares of Common Stock at a price per share less
than $7.00; provided, however, that (i) the Company may issue stock at a price
per share equal to the then current fair market value pursuant to the Company's
stock option plans; (ii) the Company may issue stock at a discount of 15% below
the then current fair market value pursuant to the Employee Stock Purchase Plan;
and (iii) the Company may sell or issue shares of Common Stock at a price less
than $7.00 per share and options, warrants, convertible securities and any other
instruments convertible or otherwise exchangeable into shares of Common Stock at
a price per share less than $7.00, if such transaction is connected with an
investment in the Company's new business venture.
SECTION 8. Covenants of the Purchaser.
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8.1 Limitations on Disposition. Without in any way limiting any other
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provision set forth herein, the Purchaser further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such Registration Statement;
(b) Such disposition shall be permitted under the provisions of
Rule 144; or
(c) There is a valid exemption from registration under the
Securities Act and other applicable securities laws and, if requested by the
Company, the Purchaser shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition shall not
require registration.
8.2 Prospectus Delivery. The Purchaser hereby covenants with the
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Company not to make any sale of the Shares under a registration statement
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied. The Purchaser acknowledges and agrees that the
Shares are not transferable on the books of the Company pursuant to a resale
under a registration statement unless the certificate submitted to the transfer
agent evidencing the Shares is accompanied by a separate officer's certificate,
(a) which may be in the form of Appendix II hereto, (b) executed by an officer
of, or other authorized person
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designated by, the Purchaser, and (c) to the effect that (i) the Shares have
been sold in accordance with the registration statement and (ii) the requirement
of delivering a current prospectus has been satisfied. The Purchaser
acknowledges that there may occasionally be times when the Company must suspend
the use of the prospectus forming a part of the registration statement until
such time as an amendment to the registration statement has been filed by the
Company and declared effective by the Securities and Exchange Commission (the
"Commission"), or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act. The Purchaser hereby covenants
that it shall not sell any Shares pursuant to such prospectus during the period
commencing at the time at which the Company gives the Purchaser written notice
of the suspension of the use of such prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to such prospectus and any amendments thereto. In no event
shall the Company suspend the use of the Prospectus for periods exceeding 45
days during any 12-month period.
SECTION 9. Legends. Each certificate or instrument representing Shares
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delivered at the Closing shall bear legends in substantially the following
forms:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE 'SECURITIES ACT')
AND ARE 'RESTRICTED SECURITIES' AS DEFINED IN RULE 144 PROMULGATED UNDER
THE SECURITIES ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (II)
IN COMPLIANCE WITH RULE 144, OR (III) PURSUANT TO AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH REGISTRATION OR
COMPLIANCE IS NOT REQUIRED AS TO SUCH SALE, OFFER OR DISTRIBUTION."
(ii) Any other legends required by California law or other
applicable blue sky or state securities laws.
The Company need not register a transfer of any Shares, and may also instruct
its transfer agent not to register a transfer of any Shares, unless the
conditions specified in the foregoing legends are satisfied to the extent
applicable.
SECTION 10. Registration of the Shares; Compliance with the Securities Act.
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10.1 Registration Procedures and Expenses. The Company shall:
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(a) within 30 business days after the Closing Date, prepare
and file with the Commission a registration statement on
Form S-3 (the "Registration Statement") relating to the
sale of the Shares by the Purchaser on the Nasdaq National
Market or the facilities of any
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national securities exchange on which the Common Stock is
then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of
necessary information from the Purchaser, to cause the
staff of the Commission to notify the Company of the
staff's willingness to grant acceleration of the effective
date of the Registration Statement within 60 days after
the Registration Statement is filed by the Company;
(c) promptly notify the Purchaser upon the Registration
Statement being declared effective by the Commission;
(d) provide to the Purchaser any information necessary to
permit sale of the Shares under Rule 144 or Rule 144A of
the Securities Act.
(e) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the
prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective
until the date on which the Shares may be resold in any
three-month period by the Purchaser without registration
and without any restrictions by reason of Rule 144(k)
under the Securities Act or any other rule of similar
effect;
(f) promptly furnish to the Purchaser with respect to the
Shares registered under the Registration Statement (and to
each underwriter, if any, of such Shares) such number of
copies of prospectuses and such other documents as the
Purchaser may reasonably request, in order to facilitate
the public sale or other disposition of all or any of the
Shares by the Purchaser; provided, however, that the
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obligation of the Company to deliver copies of
prospectuses to the Purchaser shall be subject to the
receipt by the Company of reasonable assurances from the
Purchaser that the Purchaser shall comply with the
applicable provisions of the Securities Act and of such
other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses;
(g) file documents required of the Company for normal blue sky
clearance in all states requiring blue sky clearance;
provided, however, that the Company shall not be required
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to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or
has not so consented; and
(h) bear all expenses in connection with the procedures in
paragraphs (a) through (g) of this Section 10.1 and the
registration of the Shares pursuant to the Registration
Statement, other than fees and expenses, if any, of
counsel or other advisers to the Purchaser or
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underwriting discounts, brokerage fees and commissions
incurred by the Purchaser, if any.
10.2 Transfer of Shares After Registration. The Purchaser agrees that
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it shall not effect any disposition of the Shares or its right to purchase the
Shares that would constitute a sale within the meaning of the Securities Act,
except as contemplated in the Registration Statement referred to in Section 10.1
or as otherwise permitted by law, and that it shall promptly notify the Company
of any changes in the information set forth in the Registration Statement
regarding the Purchaser or its plan of distribution.
10.3 Indemnification. In the event any securities are included in a
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registration statement under this Section 10:
(a) To the extent permitted by law, the Company shall indemnify
and hold harmless the Purchaser and each person, if any, who controls the
Purchaser within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act or the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) in
connection with the sale or purchase of the Shares, any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
or the Exchange Act or any state securities law; and the Company shall pay to
the Purchaser or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 10.3(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by the Purchaser or controlling person.
(b) To the extent permitted by law, the Purchaser shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, its attorneys,
its underwriters, and any controlling person of any such underwriter, against
any losses, claims, damages, or liabilities (joint or several) to which any of
the foregoing persons may become subject, under the Securities Act, or the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by the Purchaser expressly for use in connection with such
registration; and the Purchaser shall
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pay, as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 10.3(b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 10.3(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Purchaser, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 10.3(b)
exceed the gross proceeds from the offering received by the Purchaser.
(c) Promptly after receipt by an indemnified party under this Section
10.3 of notice of the commencement of any action (including any governmental
action), such indemnified party shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10.3, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
10.3, but the omission so to deliver written notice to the indemnifying party
shall not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 10.3.
(d) If the indemnification provided for in this Section 10.3 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; provided that in no event shall any contribution by the
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Purchaser under this subsection 10.3(d) exceed the amount of the gross proceeds
received by the Purchaser from the offering. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The obligations of the Company and the Purchaser under this
Section 10.3 shall survive the completion of any offering of securities in a
registration statement under this Section 10 or otherwise.
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10.4 Termination of Registration Obligations. The obligations of the
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Company set forth in Section 10.1 shall cease and terminate as to the Shares on
the date on which all Shares (i) are eligible for sale during any three-month
period without restriction under Rule 144, (ii) have been effectively registered
under the Securities Act and sold or otherwise disposed of by the Purchaser in
accordance with the intended method of disposition set forth in the Registration
Statement or (iii) the Company receives an opinion of counsel satisfactory in
form and substance to the Company to the effect that such conditions are not
necessary in order for a transfer of Shares to comply with the Securities Act.
10.5 Information Available. So long as the Registration Statement is
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effective covering the resale of Shares owned by the Purchaser, the Company
shall furnish to the Purchaser:
(a) as soon as practicable after the Company has made such
information available to the public through submission to
the SEC (but in the case of the Company's Annual Report to
Stockholders, within 120 days after the end of each fiscal
year of the Company), one copy of (i) its Annual Report to
Stockholders, (ii) if not included in substance in the
Annual Report to Stockholders, its Annual Report on Form 10-
K, (iii) its Quarterly Reports on Form 10-Q, (iv) its
Current Reports on Form 8-K, and (v) a full copy of the
particular Registration Statement covering the Shares (the
foregoing, in each case, excluding exhibits); and
(b) upon the written request of the Purchaser, a reasonable
number of copies of the prospectuses to supply to any other
party requiring such prospectuses in connection with the
Purchaser's prospectus delivery requirements under the
Securities Act;
and the Company, upon the reasonable request of the Purchaser, shall meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares, subject to appropriate confidentiality limitations as the
Company may require.
SECTION 11. Brokers. Each of the parties hereto hereby represents that, on
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the basis of any actions and agreements by it, there are no brokers or finders
entitled to compensation in connection with the sale of the Shares to the
Purchaser.
SECTION 12. Notices. All notices, requests, consents and other communications
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hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be deemed given when so mailed and
shall be delivered as addressed as follows:
(a) if to the Company, to:
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Read-Rite Corporation
00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person at such other place as the Company shall
designate to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end
of this Agreement, or at such other address or addresses as
may have been furnished to the Company in writing.
SECTION 13. Changes. This Agreement may not be modified or amended except
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pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 14. Headings. The headings of the various sections of this Agreement
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have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
SECTION 15. Severability. In case any provision contained in this Agreement
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should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 16. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California.
SECTION 17. No Conflicts of Interest. The Company represents, warrants and
------------------------
covenants that, to the knowledge of the Company, no trustee, officer or employee
of the of the Purchaser will receive, directly or indirectly, any personal
interest in the Company or its property of anything of substantial economic
value for his or her private benefit from the Company, or anyone acting its
behalf, in connection with the investment made pursuant to this Agreement.
SECTION 18. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement or caused this Agreement to be executed by its duly authorized
representative as of the day and year first above written.
READ-RITE CORPORATION
By____________________________________
Name:
Title:
Print or Type:
Name of the Purchaser
(Individual or Institution):
_____________________________________
Name of Individual representing
the Purchaser (if an Institution):
_____________________________________
Title of Individual representing
the Purchaser (if an Institution):
_____________________________________
Signature by:
Individual Purchaser or Individual
representing the Purchaser:
_____________________________________
Address: __________________________________
Telephone: _______________________________
Facsimile: _______________________________
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Appendix I
(page one of two)
READ-RITE CORPORATION
STOCK CERTIFICATE QUESTIONNAIRE
-------------------------------
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name in which your Shares are to be
registered (this is the name that shall appear
on your stock certificate(s)); you may use a
nominee name if appropriate: ______________________
2. The relationship between the Purchaser of the
Shares and the Registered Holder listed in
response to item 1 above: ______________________
3. The mailing address of the Registered Holder
listed in response to item 1 above: ______________________
______________________
______________________
______________________
4. The Social Security Number or Tax
Identification Number of the Registered Holder
listed in response to item 1 above: ______________________
-13-
Appendix I
(page two of two)
READ-RITE CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
___________________________________________________________________________
2. Please provide the number of shares that you shall beneficially own
immediately after Closing, including those Shares purchased by you pursuant to
the Agreement and those shares purchased by you or your affiliates through other
transactions:
_______________________________________________________________________
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
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APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
PURSUANT TO A REGISTERATION STATEMENT
-------------------------------------
The undersigned, [an officer of, or other person duly authorized by]
_____________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of
the shares evidenced by the attached certificate, and as such,
sold such shares on ______________ in accordance with
[date]
Registration Statement number ________________ and the requirement of delivering
a
[fill in the number of or otherwise identify Registration
Statement]
current prospectus by the Company has been complied with in connection with such
sale.
Print or Type:
Name of the Purchaser
(Individual or
Institution): ______________________
Name of Individual
representing the
Purchaser (if an
Institution) ______________________
Title of Individual
representing the
Purchaser (if an
Institution): ______________________
Signature by:
Individual Purchaser
or Individual
representing the Purchaser: ______________________
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EXHIBIT A
Form of Opinion
of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
-16-
