1
EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is entered into on December
15, 1997, effective as of the 28th day of November 1997, by and among Akashic
International Inc., a California corporation and a indirect wholly-owned
subsidiary of Kubota Corporation ("AII"), Akashic Memories Corporation, a
California corporation and a subsidiary of AII ("Akashic"), StorMedia
Incorporated, a Delaware corporation ("Buyer"), and StorMedia Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Buyer
("Sub").
RECITALS
WHEREAS, Akashic, (a) is the owner and operator of a business consisting
of the design, development, manufacture, sale, marketing and distribution of
thin film media and substrates therefore which business has been operated at
facilities located in California and in Malaysia (the "Business") and (b) owns
the assets that are used in the Business.
WHEREAS, Buyer and AII agree that time is of the essence in the closing
of the transactions contemplated in this Agreement.
WHEREAS, AII has sought to sell the Business "as is" and to do so by
selling Akashic and Buyer understands and acknowledges that it is acquiring
Akashic on such basis.
WHEREAS, The Boards of Directors of Buyer, Sub, AII and Akashic believe
it is in the best interests of their respective companies and the shareholders
of their respective companies that Buyer acquire Akashic through a statutory
merger of Sub with and into Akashic (the "Merger") and, in furtherance thereof,
have approved the Merger.
WHEREAS, Pursuant to the Merger, among other things, all of the
outstanding shares of Akashic capital stock ("Akashic Capital Stock") shall be
converted into cash, at the rates set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, the parties agree as follows:
2
ARTICLE 1
THE MERGER
1.1 THE MERGER. At the Effective Time (as defined in Section 1.2)
and subject to and upon the terms and conditions of this Agreement, the
Agreement of Merger attached hereto as Exhibit A (the "Agreement of Merger") and
the applicable provisions of the California Corporations Code ("California
Law"), Sub shall be merged with and into Akashic, the separate corporate
existence of Sub shall cease and Akashic shall continue as the surviving
corporation and a wholly owned subsidiary of Buyer. Akashic as the surviving
corporation after the Merger is hereinafter sometimes referred to as the
"Surviving Corporation."
1.2 CLOSING; EFFECTIVE TIME. The Closing will take place at the
offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX
on a date mutually agreed to by the parties which the parties shall use
reasonable efforts to cause to be prior to December 31, 1997 (the "Closing").
Each of the parties shall use their reasonable efforts to satisfy the closing
conditions set forth in Article 4 hereof and to consummate the transactions
contemplated hereby. In connection with the Closing, the parties hereto shall
cause the Merger to be consummated by filing the Agreement of Merger with the
Secretary of State of the State of California, in accordance with the relevant
provisions of California Law (the time of such filing being the "Effective
Time").
1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Agreement of Merger and the
applicable provisions of California Law. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of Sub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of Sub shall become the
debts, liabilities and duties of the Surviving Corporation and Surviving
Corporation shall become a wholly owned subsidiary of Buyer.
1.4 ARTICLES OF INCORPORATION; BYLAWS.
(a) At the Effective Time, the Restated Articles of
Incorporation attached as Exhibit I to the Agreement of Merger shall be the
Articles of Incorporation of the Surviving Corporation until thereafter amended
as provided by California Law and such Articles of Incorporation.
(b) The Bylaws of Sub, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended.
1.5 EFFECT ON CAPITAL STOCK. By virtue of the Merger and without any
action on the part of Buyer, Sub, Akashic or the holders of any of the following
securities:
(a) Capital Stock of Sub. All issued and outstanding shares
of capital stock of Sub shall be converted into one thousand shares of Common
Stock of the Surviving Corporation.
-2-
3
Each stock certificate of Sub evidencing ownership of any such shares of Sub
shall evidence ownership of such shares of Common Stock of the Surviving
Corporation.
(b) Cancellation of Buyer Owned Stock. All shares of Akashic
Capital Stock that are owned directly or indirectly by any subsidiary of Akashic
and any shares of Akashic Capital Stock owned by Buyer, Sub or any other
affiliate of Buyer shall be canceled and no stock of Buyer or other
consideration shall be delivered in exchange therefor.
(c) Exchange of Akashic Capital Stock for Cash. Each issued
and outstanding share of Akashic Preferred Stock and Common Stock (other than
shares to be canceled pursuant to Section 1.5(b) and shares, if any, which shall
then or thereafter constitute "dissenting shares" within the meaning of Section
1300 of the California Corporation Code ("Dissenting Shares")) shall be
converted into the right to receive from Buyer in cash an amount per share such
that the aggregate amount paid for all shares of outstanding Akashic Capital
Stock is Ten Million U.S. Dollars ($10,000,000) (the "Aggregate Conversion
Price"), the per share price to be calculated as set forth in the Agreement of
Merger and in accordance with the liquidation preferences of each class and
series of such shares (the "Per Share Conversion Prices"). The Per Share
Conversion Prices shall be calculated immediately prior to the Effective Time of
the Merger based on the total number of shares outstanding and the relative
liquidation preferences of such shares at such time.
(d) Dissenters' Rights. If holders of Akashic Capital Stock
are entitled to dissenters' rights in connection with the Merger under Section
1300 of the California Corporation Code, any Dissenting Shares shall not be
converted into cash hereunder, but shall be converted into the right to receive
such consideration as may be determined to be due with respect to such
Dissenting Shares pursuant to the laws of the State of California.
(e) Akashic Stock Option Plans. At the Effective Time,
Akashic's 1996, Stock Option Plan (the "Option Plan") and all options to
purchase Akashic Common Stock then outstanding under the Option Plan shall be
terminated and canceled in accordance with the terms of the Option Plan. No
options, warrants or rights to acquire Akashic Capital Stock shall survive the
Merger.
1.6 SURRENDER OF CERTIFICATES.
(a) Exchange Agent. Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx shall
act as exchange agent (the "Exchange Agent") in the Merger.
(b) Buyer to Provide Cash. At the Effective Time, Buyer
shall make available to the Exchange Agent for exchange in accordance with this
Article I, Ten Million U.S. Dollars ($10,000,000).
(c) Exchange Procedures. At the Effective Time, the
Surviving Corporation shall cause to be mailed to each holder of record of a
certificate or certificates (the "Certificates") which immediately prior to the
Effective Time represented outstanding shares of Akashic Capital Stock,
-3-
4
whose shares were converted into the right to receive cash pursuant to Section
1.5, (i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
receipt of the Certificates by the Exchange Agent, and shall be in such form and
have such other provisions as Buyer may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for cash. Upon surrender of a Certificate for cancellation to the Exchange Agent
or to such other agent or agents as may be appointed by Buyer, together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, the holder of such Certificate shall be entitled
to receive in exchange therefor the amount of cash payable based on the Per
Share Conversion Price of the class or series of the shares surrendered. Each
outstanding Certificate that, prior to the Effective Time, represented shares of
Akashic Capital Stock will be deemed from and after the Effective Time, for all
corporate purposes, to evidence only the right to receive, without interest
thereon, the amount of cash calculated based on the applicable Per Share
Conversion Price. All cash delivered upon surrender for exchange of shares of
Akashic Capital Stock in accordance with the terms hereof shall be deemed to
have been delivered in full satisfaction of all rights pertaining to such
shares.
1.7 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time
after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of Sub or Akashic, the officers and directors of Surviving
Corporation are fully authorized in the name of the respective corporations or
otherwise to take, and will take, all such lawful and necessary action, so long
as such action is not inconsistent with this Agreement.
1.8 DELIVERIES AT THE CLOSING. At the Closing, (i) the AII will
deliver to Buyer the various certificates, instruments, and documents referred
to in Section 4.1 below, and (ii) Buyer will deliver to AII the various
certificates, instruments, and documents referred to in Section 4.2 below.
ARTICLE 2
REPRESENTATIONS OF AII
AII and Akashic hereby represent to Buyer as follows:
2.1 ORGANIZATION. AII and Akashic are each corporations duly
organized, validly existing and in good standing under the laws of the
jurisdiction of their respective incorporation and each has all necessary
corporate power and authority to own and lease their respective properties and
assets and to carry on their respective businesses as now being conducted. Prior
to the Closing, Akashic shall deliver to Buyer a true and correct copy of its
Articles of Incorporation and Bylaws, as amended to date and shall not amend
such documents thereafter without the prior approval of Buyer.
2.2 AUTHORITY. AII and Akashic each have all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by each of the AII and Akashic and the consummation by each of the
-4-
5
AII and Akashic of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of each of the AII and
Akashic. This Agreement has been duly executed and delivered by each of the AII
and Akashic and constitutes a valid and binding obligation of each of the AII
and Akashic, enforceable in accordance with its terms except as enforcement may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally, and subject to rules of law
governing specific performance, injunctive relief and other equitable remedies.
Except for certain third party consents which shall be obtained prior to the
Closing, the execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, or given rise
to a right of termination, cancellation or acceleration of any obligation or
loss of a material benefit under, any provision of the charter documents of
Akashic or either of the AII or any loan or credit agreement, note, bond,
mortgage, indenture, license, lease or other agreement or instrument, permit,
concession, franchise, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Akashic or AII or any of them or the properties or
assets of Akashic.
2.3 GOVERNMENTAL APPROVALS. Subject to compliance with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), no consent, approval, order or authorization of, or registration,
declaration or filing with any governmental authority is required by or with
respect to AII or Akashic in connection with the execution and delivery of this
Agreement by AII and Akashic or the consummation by AII and Akashic of the
transactions contemplated hereby.
2.4 COMPLIANCE WITH LAWS. Akashic has materially complied with, is
not in violation of, and has not received any notices of violation with respect
to, any federal, state or local statute, law or regulation with respect to the
operation of its business.
2.5 CAPITALIZATION. As of the date hereof, the authorized capital
stock of Akashic consists of 36,556,583 shares of Akashic Common Stock, par
value $0.001 per share, and 31,756,583 shares of Preferred Stock, consisting of
19,200,000 shares of Series A Preferred Stock, par value $0.79828 per share, and
12,556,583 shares of Series B Preferred Stock, par value $0.001 per share. As of
the date hereof, 23,335 shares of Akashic Common Stock were validly issued,
fully paid and outstanding, and 19,200,000 shares of Series A Preferred Stock
were issued and outstanding, and 3,546,187 shares of Akashic Common Stock were
reserved for issuance upon exercise of stock options outstanding as of such date
(the "Akashic Options") under the Option Plan. Between the date hereof and the
Closing, any loan from AII to Akashic will be converted into Preferred Stock as
follows: (i) The outstanding loan in the principal amount of $100,000,000 will
be converted into 12,556,583 shares of Series B Preferred Stock, and (ii) new
loans made or to be made between the date hereof and the date of Closing in the
aggregate principal amount of up to $135,000,000 will be converted into up to
13,500,000 shares of newly created Series C Preferred Stock. All outstanding
shares of Akashic Capital Stock are, and any shares of Akashic Capital Stock
are, and any shares of Akashic Common Stock issued upon exercise of any Akashic
Option will be, when issued pursuant to exercise of any Akashic Option, validly
issued, fully paid and non-assessable and not subject to any preemptive rights.
All Akashic Options not exercised prior to the Effective Time, by their terms
shall terminate and cease to represent the right to acquire Akashic Common Stock
effective as of the
-5-
6
Effective Time. After the date hereof, Akashic shall not grant any options or
rights to acquire Akashic Common Stock, shall issue Common Stock only in
connection with the exercise of Akashic Options outstanding as of the date
hereof, and shall notify and coordinate with Buyer concerning the issuance of
any shares of Preferred Stock. Following the Effective Time, there will be no
outstanding options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could require
Akashic to issue, sell, or otherwise cause to become outstanding any of its
capital stock. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation, or similar rights with respect to Akashic.
There are no voting trusts, proxies, or other agreements or understandings with
respect to the voting of the Akashic Capital Stock.
2.6 FINANCIAL STATEMENTS. Prior to the Effective Time, AII has
delivered to Buyer the following financial statements (collectively the
"Financial Statements"): (i) audited consolidated balance sheets and statements
of income, changes in stockholders' equity, and cash flow as of and for the
fiscal years ended December 31, 1996, December 31, 1995 and December 31, 1994
for Akashic and its subsidiaries; and (ii) unaudited consolidated balance sheets
and statements of income, changes in stockholders' equity, and cash flow as of
and for the eleven (11) months ended November 30, 1997 (the "November Financial
Statements") for Akashic and its subsidiaries. The Financial Statements
(including the notes thereto) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby, present fairly the financial condition of Akashic and
its subsidiaries as of such dates and the results of operations of Akashic and
its subsidiaries for such periods, are correct and complete, and are consistent
with the books and records of Akashic and its subsidiaries (which books and
records are correct and complete); provided, however, that the November
Financial Statements are subject to normal year-end adjustments (which will not
be material individually or in the aggregate) and lack footnotes and other
presentation items. All material contingent liabilities of Akashic known to
Akashic are reflected in such Financial Statements.
2.7 DISCLOSURE. To the best of Akashic's knowledge, the materials
delivered to Buyer by AII and their representations disclose all material facts
about the business of Akashic and do not omit to state any material facts
necessary for an understanding of the material liabilities of Akashic.
2.8 ASSETS OF BUSINESS. To the best of Akashic's knowledge, Akashic
owns and has good title to all of the assets of the Business as described to
Buyer and there are no other assets, except the Itami IP (as defined in the
Patent Purchase Agreement between Kubota and Buyer of even date herewith (the
"Patent Purchase Agreement")), necessary to operate the Business as presently
conducted.
-6-
7
ARTICLE 3
REPRESENTATIONS OF BUYER
Buyer represents to AII as follows:
3.1 ORGANIZATION. Buyer and Sub are each corporations duly
organized, validly existing and in good standing under the laws of the
jurisdiction of their respective incorporation and each has all necessary
corporate power and authority to own and lease all of its respective properties
and assets and to carry on its business as it is now being conducted.
3.2 AUTHORITY. Buyer and Sub have all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Buyer and
Sub and the consummation by Buyer and Sub of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Buyer and Sub. This Agreement has been duly executed and delivered by Buyer
and Sub and constitutes a valid and binding obligation of Buyer and Sub,
enforceable in accordance with its terms except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally, and subject to rules of law governing specific
performance, injunctive relief and other equitable remedies. Except for certain
third party consents which shall be obtained prior to the Closing, the execution
and delivery of this Agreement will not, and the consummation of the
transactions contemplated hereby and compliance with the provisions hereof will
not, conflict with or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a material benefit
under, any provision of the charter documents of Buyer or Sub or any loan or
credit agreement, note, bond mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Buyer or Sub or its
properties or assets, which has not been waived.
3.3 GOVERNMENTAL APPROVALS. Subject to compliance with the HSR Act,
no consent, approval, order or authorization of, or registration, declaration or
filing with any governmental authority is required by or with respect to Buyer
or Sub in connection with the execution and delivery of this Agreement by Buyer
and Sub or the consummation by Buyer and Sub of the transactions contemplated
hereby.
ARTICLE 4
CONDITIONS TO CLOSING
4.1 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the transaction to be performed by it in connection herewith is
subject to the satisfaction of the following conditions:
-7-
8
(a) Representations. The representations set forth in
Section 2 hereof shall be true and correct in all material respects as of the
Closing.
(b) Shareholder Approval. The Agreement and the Agreement of
Merger shall have been approved and adopted by the holders of the requisite
number of outstanding shares of Akashic Capital Stock in accordance with
Akashic's Articles of Incorporation and Bylaws and with the California Law.
(c) Patent Purchase Agreement. The transactions contemplated
by the Patent Purchase Agreement shall close simultaneously with the Effective
Time.
(d) Cancellation of Debt. Without creating taxable income to
Akashic, all long term debt and debentures of Akashic or its subsidiaries (other
than the loan from Western Digital Corporation) shall be extinguished, and Buyer
shall receive evidence satisfactory to Buyer that all such debt has been
extinguished. Notwithstanding the foregoing, Buyer acknowledges that (i)
Akashic, through its wholly owned subsidiary Akashic Kubota Technologies Sdn.
Bhd., a Malaysian corporation ("AKT") owes the aggregate principal amount of
U.S. $45,000,000 plus any accrued interest thereon through the Closing in the
approximate amount of U.S. $2,000,000 (the "Loan") to Sumitomo Bank Ltd., Sanwa
Bank Ltd., and Tokyo Mitsubishi Bank (the "Banks") and that such Loan is
guaranteed by AII's parent corporation, Kubota Corporation, a Japanese
corporation, ("Kubota") and (ii) that AII may not have received all government
approvals necessary to extinguish the Loan prior to the Closing. In the event
that such approvals have not been obtained prior to the Closing, the parties
agree that AII shall deposit with the Banks funds sufficient for repayment of
the Loans, along with irrevocable instructions that such funds will be used to
repay the Loan.
(e) Regulatory Approvals. All applicable regulatory
approvals, authorizations and consents shall have been obtained.
(f) Officer's Certificate. AII shall deliver a certificate
to Buyer executed by duly authorized officers certifying compliance with
subsections 4.1(a), (b), (d) and (e).
(g) Kubota Guaranty and Indemnification. Kubota and Buyer
shall have executed the Kubota Guaranty and Indemnification.
4.2 CONDITIONS TO OBLIGATIONS OF AII. The obligations of AII and
Akashic to consummate the transactions to be performed by them in connection
herewith is subject to the satisfaction of the following conditions:
(a) Purchase Price. Buyer shall deliver to the Exchange
Agent a check in the amount of Ten Million U.S. Dollars ($10,000,000).
(b) Representations. The representations of Buyer set forth
in Section 3 hereof shall be true and correct in all material respects as of the
Closing.
-8-
9
(c) Shareholder Approval. The Agreement and the Agreement of
Merger shall have been approved and adopted by the holders of the requisite
number of outstanding shares of Sub's capital stock in accordance with Sub's
Articles of Incorporation and Bylaws and with the California Law.
(d) Patent Purchase Agreement. The transactions contemplated
by the Patent Purchase Agreement shall close simultaneously with the Effective
Time.
(e) Regulatory Approvals. All applicable regulatory
approvals, authorizations and consents shall have been obtained.
(f) Officer's Certificate. Buyer shall deliver a certificate
to AII executed by a duly authorized officer certifying compliance with
subsections 4.2(b), (c) and (e).
ARTICLE 5
COVENANTS
5.1 PREPARATION OF FINANCIAL STATEMENTS. AII shall cooperate with
Buyer in the preparation of audited financial statements for Akashic and its
subsidiaries for the year ended December 31, 1997. Buyer shall cooperate with
AII to provide it with sufficient financial information to prepare its
consolidated tax returns for periods prior to the Closing.
5.2 AMENDMENT TO NAME. Prior to the Closing, AII and Akashic shall
change the name of Akashic's Malaysian subsidiary to delete the name "Kubota"
from its name.
5.3 BUSINESS OFFICE. Buyer shall make available to representatives
of Kubota and AII one business office at the principal office of Akashic in San
Jose, California for the period from the Closing through March 31, 1998.
5.4 PAYMENT OF BONUSES. AII shall pay or have paid "all transaction
bonuses" if implemented owing at the time of Closing or then promised to the
employees of Akashic; provided that if this transaction closes prior to the
payment of the performance bonuses, Akashic shall be left with sufficient cash
at Closing to cover the payment of such bonuses.
5.5 OPERATION IN ORDINARY COURSE. Except as set forth in Section 5.6
below, since November 30, 1997 and through the Effective Time, Akashic has
operated and will operate its business in the ordinary course consistent with
past practices including, without limitation, collections of accounts
receivable, payment of accounts payable and efforts to qualify its products in
new customer programs.
5.6 PLANT CLOSURE. AII shall pay or have paid all severance,
withholding taxes and PTO costs and expenses (the "Severance Costs") relating to
the employee layoff of approximately 900
-9-
10
employees scheduled to take place on or about December 23, 1997 provided,
however, that if such Severence Costs exceed $6.0 million, then Buyer shall
reimburse AII for such Severence Costs as are demonstrated to have been expended
beyond such $6.0 million. Buyer shall assume and guarantee the leases of the
Turquoise Facility, Tasmin Facility and Gibraltar Facility. Buyer further agrees
to move any and all equipment located in such facilities and to restore the
facilities such that they can be returned to the respective landlords.
5.7 TERMINATION OF TAX SHARING AGREEMENT. As of the Closing AII
shall release Akashic from any and all tax-sharing agreements with AII, if any,
and obtain for Akashic releases from AII's affiliates, if any, included in such
tax-sharing agreements.
ARTICLE 6
GENERAL PROVISIONS
6.1 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the State
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California as applied to
contracts entered into and to be performed in the State of California.
6.2 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered in person, mailed by first
class, registered or certified mail, postage prepaid, sent by overnight courier,
or sent by telex, telegram, telecopier or electronic mail to:
If to AII:
Akashic International Inc.
x/x Xxxxxx Xxxxxxxxxxx
0-00 Xxxxxxxxxxxxxxx 0-xxxxx,
Xxxxxx-xx Xxxxx, 000 Xxxxx
Attn: Xxxxx Xxxx
Fax: 00-000-0000
with a copy to:
Xxxxxx & Xxxxx
000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
-10-
11
If to Akashic:
Akashic Memories Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
If to Buyer:
StorMedia Incorporated
000 Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxx
Fax: 000-000-0000
By written notice to the other party, a party may change the address to which
notices and other communications shall be directed. Notice shall be deemed to
have been given upon the earlier to occur of (i) the third business day
following dispatch by one of the foregoing methods or (ii) actual receipt.
6.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS. The
representations and warranties of the parties set forth in this Agreement or any
certificate or instrument delivered pursuant hereto shall survive the Closing.
6.4 ENTIRE AGREEMENT. The Agreement and the Patent Purchase
Agreement represents and constitutes the entire agreement between the parties,
and supersedes all prior agreements and understandings with respect to the
matters covered by this Agreement and the Patent Purchase
-11-
12
Agreement, and, except for the Patent Purchase Agreement, Confidentiality
Agreement and Kubota Guaranty and Indemnification, there are no other
agreements, warranties or representations which are not set forth herein.
6.5 WAIVER. Any of AII or Buyer may, by written notice to the other,
(i) waive any of the conditions to its obligations hereunder or extend the time
for the performance of any obligations or actions of the other, (ii) waive any
inaccuracies in the representations of the other contained in this Agreement or
any documents delivered pursuant to this Agreement, (iii) waive compliance with
any of the covenants of the other contained in this Agreement and (iv) waive
performance of any obligations by the other. The waiver of one breach or default
hereunder shall not constitute the waiver of any subsequent breach or default.
6.6 EXPENSES. All expenses incurred by either party in connection
with the execution and performance of this Agreement shall be the obligation of
and shall be paid by such party (with any such fees or expenses of AII and
Akashic, including investment banking and finders fees, to be paid by Kubota).
6.7 DISPUTE FEES. In the event of a dispute arising under this
Agreement which results in arbitration or litigation, the prevailing party shall
be entitled to reimbursement of reasonable expenses, including but not limited
to reasonable attorneys' and expert witness fees incurred by it in pursuing such
dispute, as determined by the court in any such proceeding.
6.8 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
the parties and inure to the benefit of the successors, assigns, heirs and legal
representatives of the respective parties hereto; provided, however, that this
Agreement and all rights hereunder may not be assigned by any party hereto
except by or with the prior written consent of the other party, with such
consent not to be unreasonably withheld.
-12-
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and date first above written.
Akashic Memories Corporation
By: /s/ XXXXXXX XXXXXX
------------------------------------------
Title: V.P. - Corporate Development & Planning
---------------------------------------
Akashic International Inc.
By: /s/ XXXXXXX XXXXXX
------------------------------------------
Title: Secretary
---------------------------------------
StorMedia Incorporated
By: /s/ XXXXXXX X. XXXXX
------------------------------------------
Xxxxxxx X. Xxxxx
Title: Chairman of the Board and Chief Executive
Officer
StorMedia Acquisition Corporation
By: /s/ XXXXXXX X. XXXXX
------------------------------------------
Xxxxxxx X. Xxxxx
Title: President
-13-
