STOCK PURCHASE AGREEMENT
dated as of February 13, 1997
among
QUANTUM CORPORATION,
QUANTUM PERIPHERALS COLORADO, INC.
and
STORAGE TECHNOLOGY CORPORATION
TABLE OF CONTENTS
Page
----
SECTION 1. AGREEMENT TO SELL AND PURCHASE............................. 1.
1.1 Sale and Purchase of Shares. .............................. 1.
1.2 Purchase Price............................................. 1.
1.3 Terms of Quantum Preferred Shares.......................... 1.
1.4 Amendment of Lease......................................... 2.
SECTION 2. CLOSING, DELIVERY AND PAYMENT.............................. 2.
2.1 Closing.................................................... 2.
2.2 Delivery and Payment....................................... 2.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF STORAGETEK............... 2.
3.1 Organization and Standing.................................. 2.
3.2 Power and Authorization.................................... 3.
3.3 No Violation or Conflict................................... 3.
3.4 Governmental Authorization................................. 3.
3.5 Information................................................ 3.
3.6 Litigation................................................. 3.
3.7 Title to Shares; No Encumbrance............................ 4.
3.8 Investment Representations................................. 4.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF QUANTUM.................. 5.
4.1 Organization and Standing.................................. 5.
4.2 Power and Authorization.................................... 6.
4.3 Issuance of Quantum Preferred Shares....................... 6.
4.4 No Violation or Conflict................................... 6.
4.5 Governmental Authorization................................. 6.
4.6 Litigation................................................. 6.
4.7 Investment Representations................................. 7.
4.8 Legends.................................................... 7.
SECTION 5. COVENANTS OF QUANTUM....................................... 7.
5.1 Reservation of Shares...................................... 7.
SECTION 6. CONDITIONS TO CLOSING...................................... 7.
6.1 Conditions to Obligations of StorageTek. .................. 7.
6.2 Conditions to Obligations of Quantum....................... 8.
SECTION 7. MISCELLANEOUS. ........................................... 9.
7.1 Notices.................................................... 9.
7.2 Amendments and Waivers.....................................10.
i.
TABLE OF CONTENTS
(continued)
Page
7.3 Expenses...................................................10.
7.4 Attorney's Fees............................................10.
7.5 Successors and Assigns.....................................10.
7.6 Governing Law..............................................10.
7.7 Counterparts...............................................11.
7.8 Entire Agreement...........................................11.
7.9 Severability...............................................11.
7.10 Captions...................................................11.
7.11 Broker's Fees..............................................11.
EXHIBITS
Certificate of Designation Exhibit A
Letter Agreement between Quantum and StorageTek Exhibit B
ii.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of
February 13, 1997 by and among QUANTUM PERIPHERALS COLORADO, INC., a Delaware
corporation ("QPC"), STORAGE TECHNOLOGY CORPORATION, a Delaware corporation
("StorageTek") and QUANTUM CORPORATION, a Delaware corporation ("Quantum").
RECITALS
WHEREAS, Quantum owns eight hundred ten (810) shares of common stock,
par value $.01 per share, of QPC (the "QPC Common Stock"), which constitutes
eighty-one percent (81%) of the issued and outstanding shares of capital stock
of QPC;
WHEREAS, StorageTek owns one hundred ninety (190) shares of QPC Common
Stock (the "Shares"), which constitutes nineteen percent (19%) of the issued and
outstanding shares of capital stock of QPC; and
WHEREAS, pursuant to a Stockholders' Agreement, dated August 19, 1992,
by and among the parties to this Agreement (the "Stockholders' Agreement"),
Quantum has an option to purchase the Shares from StorageTek; and
WHEREAS, Quantum has exercised such option and the parties have agreed
upon the price and terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
SECTION 1. AGREEMENT TO SELL AND PURCHASE.
1.1 Sale and Purchase of Shares. Subject to the terms and conditions
hereof, at the Closing, StorageTek hereby agrees to sell, assign, transfer and
deliver the Shares to Quantum, and Quantum agrees to purchase the Shares from
StorageTek.
1.2 Purchase Price. The purchase price for the Shares shall consist of
ninety thousand (90,000) shares of preferred stock, $0.01 par value, of Quantum
(the "Quantum Preferred Shares") and three million four hundred thousand dollars
($3,400,000) in cash (the "Cash Purchase Price" and together with the Quantum
Preferred Shares, the "Purchase Price").
1.3 Terms of Quantum Preferred Shares. The Quantum Preferred Shares
shall have the rights, preferences, privileges and restrictions substantially as
set forth in the Certificate of Designation attached hereto as Exhibit A (the
"Certificate of Designation").
1.
1.4 Amendment of Lease. At or prior to the Closing, subject to the
terms hereof, StorageTek and Quantum shall enter into the letter agreement
amending the Facility Lease between StorageTek and QPC in substantially the form
attached hereto as Exhibit B (the "Letter Agreement") and Quantum shall pay to
StorageTek $1,000,000 in cash in accordance with Section 2.2(b).
SECTION 2. CLOSING, DELIVERY AND PAYMENT.
2.1 Closing. The closing of the sale and purchase of the Shares under
this Agreement (the "Closing") shall take place at the offices of Quantum at
9:00 a.m. (California time) upon the day all of the conditions to Closing have
been satisfied, or as soon thereafter as practicable, at a time and place fixed
by mutual written consent of the parties (such date is hereinafter referred to
as the "Closing Date").
2.2 Delivery and Payment.
(a) At the Closing, subject to the terms and conditions hereof,
StorageTek will deliver to Quantum the stock certificates in the name of
StorageTek representing the Shares, duly endorsed (or accompanied by duly
executed stock powers) and Quantum will: (i) pay the Cash Purchase Price to
StorageTek by federal funds wire transfer made payable to an account designated
by StorageTek; and (ii) shall deliver to StorageTek certificates representing
the Quantum Preferred Shares.
(b) At the Closing, subject to the terms and conditions hereof, QPC and
StorageTek shall each execute and deliver the Letter Agreement and Quantum shall
cause QPC to pay one million dollars ($1,000,000) in cash to StorageTek in
accordance with Section 5 of the Letter Agreement by federal funds wire transfer
made payable to an account designated by StorageTek at least one day in advance
of the Closing.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF STORAGETEK.
StorageTek hereby represents and warrants to Quantum that as of the
date hereof:
3.1 Organization and Standing. StorageTek is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. StorageTek has all requisite corporate power and authority to execute
and deliver this Agreement and the Letter Agreement, to sell the Shares, and to
carry out the provisions of this Agreement and the Letter Agreement. StorageTek
is duly qualified and is authorized to do business and is in good standing as a
foreign corporation in all jurisdictions in which the nature of its activities
and of its properties (both owned and leased) makes such qualification
necessary, except for those jurisdictions in which failure to do so would not
have a Material Adverse Effect on StorageTek. For purposes of this Agreement,
"Material Adverse Effect" means a material adverse effect on the assets,
business, operations or financial condition of the business entity.
2.
3.2 Power and Authorization. All corporate action on the part of
StorageTek, its directors, officers and stockholders necessary for the
authorization of this Agreement and the Letter Agreement, the performance of all
obligations of StorageTek hereunder and thereunder and the sale and delivery of
the Shares pursuant hereto has been taken or will be taken prior to the Closing.
The Agreement and the Letter Agreement, when executed and delivered, will be
valid and binding obligations of StorageTek enforceable in accordance with their
respective terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights. The sale of the Shares to Quantum is not and
will not be subject to any preemptive rights or rights of first refusal that
have not been properly waived or complied with.
3.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement and the Letter Agreement and the consummation of the
transaction contemplated hereby and thereby by StorageTek do not and will not
violate, conflict with, result in a breach of, or constitute a default or result
in or permit any acceleration of any obligation under, (a) any law, ordinance or
governmental rule or regulation to which StorageTek is subject, (b) any
judgment, order, writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority which is applicable to
StorageTek, (c) its certificate of incorporation or by-laws, or (d) any
mortgage, indenture, agreement, contract, commitment, lease, license or other
instrument or document, oral or written, to which StorageTek is a party, or by
which any of the Shares may be bound, except where a waiver with respect thereto
has been obtained.
3.4 Governmental Authorization. The execution, delivery and performance
by StorageTek of this Agreement and the Letter Agreement does not require any
action by or in respect of, or filing with, any governmental body, agency,
official or authority other than: (a) such filings as have been made prior to
the Closing; and (b) such post-closing filings as may be required under
applicable state securities laws, which will be timely filed within the
applicable periods therefor.
3.5 Information. StorageTek confirms that it has had the full
opportunity to make all inquiries and receive all information it desires with
respect to the business, operations and financial affairs of QPC (in regard to
StorageTek's sales of the Shares) and the business, operations and financial
affairs of Quantum (in regards to StorageTek's purchase of the Quantum Preferred
Shares). StorageTek has had the opportunity to ask questions of and receive
answers from Quantum and its management. StorageTek has all information it
considers necessary or appropriate for deciding whether to execute and perform
this Agreement. StorageTek has been represented by its own counsel in connection
with the transactions set forth herein.
3.6 Litigation. There is no action, suit, proceeding or investigation
pending or, to StorageTek's knowledge, currently threatened against StorageTek,
that questions the validity of this Agreement or the Letter Agreement or the
right of StorageTek to enter into this Agreement or the Letter Agreement, or to
consummate the transaction contemplated hereby, nor is StorageTek aware that
there is any basis for the foregoing.
3.
3.7 Title to Shares; No Encumbrance. Immediately prior to the purchase
and sale contemplated in Section 1 hereof, StorageTek owns and will own, of
record and beneficially, good, valid and marketable title to the Shares, free
and clear of any and all liens, security interests, mortgage, pledge, charge,
claim or other encumbrance of any nature whatsoever ("Liens"). Upon delivery of
the Shares by StorageTek to Quantum at the Closing, and upon payment of the
Purchase Price therefor, good and valid title to such Shares will pass to
Quantum, free and clear of all Liens, other than those arising from acts of
Quantum or its affiliates. Other than this Agreement and the Stockholders'
Agreement by and among Digital Equipment Corporation (as predecessor to
Quantum), StorageTek, and Rock Mountain Magnetics, Inc. (the prior name of QPC),
dated August 19, 1992 (the "Stockholders' Agreement"), the Shares are not
subject to any voting trust agreement or other contract, arrangement, commitment
or understanding, including but not limited to those restricting or otherwise
relating to the voting, dividend rights or disposition of the Shares. Except for
the Shares, StorageTek does not own, directly or indirectly, of record or
beneficially, any securities of QPC, and StorageTek has no right of first
refusal, right of co-sale, contractual preemptive right, or other right to
acquire any unissued securities or other property of QPC or Quantum or any
issued and outstanding securities of QPC held by Quantum.
3.8 Investment Representations. StorageTek understands that the Quantum
Preferred Shares have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"). StorageTek also understands that the Quantum
Preferred Shares are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon StorageTek's
representations contained in this Agreement. StorageTek hereby represents and
warrants as follows:
(a) StorageTek Bears Economic Risk. StorageTek has substantial
experience in evaluating and investing in transactions of securities in
companies similar to Quantum so that it is capable of evaluating the merits and
risks of its investment in Quantum and has the capacity to protect its own
interests. StorageTek must bear the economic risk of this investment
indefinitely unless the Quantum Preferred Shares are registered pursuant to the
Securities Act, or an exemption from registration is available. StorageTek
understands that Quantum has no present intention of registering the Quantum
Preferred Shares or the shares of common stock, $0.01 par value, issuable upon
conversion of the Quantum Preferred Shares the ("Quantum Conversion Shares").
StorageTek also understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow StorageTek to transfer all or any
portion of the Quantum Preferred Shares or Quantum Conversion Shares or under
the circumstances, in the amounts or at the times StorageTek might propose.
(b) Acquisition for Own Account. StorageTek is acquiring the
Quantum Preferred Shares and the Quantum Conversion Shares for StorageTek's own
account for investment only, and not with a view towards their distribution.
4.
(c) Investment Experience. StorageTek represents that by
reason of its, or of its management's, business or financial experience,
StorageTek has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement.
(d) Restricted Securities. StorageTek acknowledges and agrees
that the Quantum Preferred Shares and Quantum Conversion Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available.
(g) Legends. Each certificate representing the Quantum
Preferred Shares and Quantum Conversion Shares shall be stamped or otherwise
imprinted with a legend substantially similar to the following (in addition to
any legend required under applicable state securities laws or as provided
elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER THE ACT OR UNLESS QUANTUM
HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO
QUANTUM AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.
Quantum shall be obligated to reissue promptly unlegended certificates at the
request of any holder thereof if the holder shall have obtained an opinion of
counsel (which counsel may be counsel to Quantum) reasonably acceptable to
Quantum to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or legend. Any
legend endorsed on an instrument pursuant to applicable state securities laws
and the stop-transfer instructions with respect to such securities shall be
removed upon receipt by Quantum of an order of the appropriate blue sky
authority authorizing such removal.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF QUANTUM.
Quantum hereby represents and warrants to StorageTek that as of the
date hereof:
4.1 Organization and Standing. Quantum is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Quantum has all requisite corporate power and authority to own and operate its
properties and assets, to execute and deliver this Agreement and the Letter
Agreement, to sell the Quantum Preferred Shares and the Quantum Conversion
Shares and to carry out the provisions of this Agreement and the Letter
Agreement. Quantum is duly qualified and authorized to do business and is in
good standing as a foreign corporation in all jurisdictions in which the nature
of its activities and of its properties (both owned and leased) makes such
qualification necessary, except for those
5.
jurisdictions in which failure to do so would not have a Material Adverse Effect
on Quantum or its business.
4.2 Power and Authorization. All corporate action on the part of
Quantum, its directors, officers and stockholders necessary for the
authorization of this Agreement and the Letter Agreement, the performance of all
obligations of Quantum hereunder and thereunder and the sale and delivery of the
Quantum Preferred Shares and the Quantum Conversion Shares pursuant hereto has
been taken or will be taken prior to the Closing. The Agreement and the Letter
Agreement, when executed and delivered, will be valid and binding obligations of
Quantum enforceable in accordance with their respective terms, except as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application affecting enforcement of creditors' rights. The sale of
the Quantum Preferred Shares and the Quantum Conversion Shares is not and will
not be subject to any preemptive rights or rights of first refusal that have not
been properly waived or complied with.
4.3 Issuance of Quantum Preferred Shares. The rights preferences and
privileges of the Quantum Preferred Shares are substantially as set forth in the
Certificate of Designation attached hereto as Exhibit A. The Quantum Conversion
Shares have been duly and validly reserved for issuance. When issued in
compliance with the provisions of the Agreement and Quantum's certificate of
incorporation, the Quantum Preferred Shares and the Quantum Conversion Shares
will be duly and validly issued, fully paid and nonassessable, and will be free
of any liens, encumbrances, security interests or restrictions on transfer other
than those provided in this Agreement and under applicable state and federal
securities laws as set forth herein or as otherwise required by such laws at the
time the transfer is proposed.
4.4 No Violation or Conflict. The execution, delivery and performance
of this Agreement and the Letter Agreement and the consummation of the
transaction contemplated hereby and thereby by Quantum do not and will not
violate, conflict with, result in a breach of, or constitute a default or result
in or permit any acceleration of any obligation under, (a) any law, ordinance or
governmental rule or regulation to which Quantum is subject, (b) any judgment,
order, writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority which is applicable to
Quantum, (c) its certificate of incorporation or by-laws, or (d) any mortgage,
indenture, agreement, contract, commitment, lease, license or other instrument
or document, oral or written, to which Quantum is a party, or by which the
Quantum Preferred Shares or the Quantum Conversion Shares may be bound, except
where a waiver with respect thereto has been obtained.
4.5 Governmental Authorization. The execution, delivery and performance
by Quantum of this Agreement does not require any action by or in respect of, or
filing with, any governmental body, agency, official or authority other than:
(a) such filings as have been made prior to the Closing; and (b) such
post-closing filings as may be required under applicable state securities laws,
which will be timely filed within the applicable periods therefor.
4.6 Litigation. There is no action, suit, proceeding or investigation
pending or, to Quantum's knowledge, currently threatened against Quantum that
questions the validity of this
6.
Agreement or the Letter Agreement or the right of Quantum to enter into this
Agreement or the Letter Agreement, or to consummate the transaction contemplated
hereby or thereby, nor is Quantum aware that there is any basis for the
foregoing.
4.7 Investment Representations. Quantum confirms that as the 81%
stockholder of QPC, it has all of the information it requires with respect to
the business, management and financial affairs of QPC. Quantum understands that
the Shares have not been registered under the Securities Act. Quantum also
understands that the Shares are being offered and sold in a private transaction
pursuant to an exemption from registration contained in the Securities Act.
Quantum agrees not to resell the Shares except in accordance with applicable
federal and state securities laws. Quantum acknowledges that StorageTek makes no
representation or warranty with respect to the accuracy or completeness of the
books and records of QPC.
4.8 Legends. Quantum understands and acknowledges that each certificate
representing the Shares shall be stamped or otherwise imprinted with a legend
substantially similar to the following (in addition to any legend required under
applicable state securities laws or as provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER THE ACT OR UNLESS QPC HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO QPC
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.
SECTION 5. COVENANTS OF QUANTUM.
5.1 Reservation of Shares. Quantum shall at all times reserve and keep
available out of its authorized but unissued shares of common stock, such number
of its authorized shares of common stock as shall be sufficient for the purpose
of issuing the Quantum Conversion Shares in accordance with the Certificate of
Designation. If at any time the number of authorized but unissued shares of
common stock shall not be sufficient to issue the Quantum Conversion Shares,
Quantum will take such corporate action as may be necessary to increase its
authorized but unissued shares of common stock to such number of shares as shall
be sufficient for such purpose.
SECTION 6. CONDITIONS TO CLOSING.
6.1 Conditions to Obligations of StorageTek. StorageTek's obligations
to sell the Shares to Quantum at the Closing are subject to the satisfaction, at
or prior to the Closing, of the following conditions:
7.
(a) Representations and Warranties True. The representations
and warranties made by Quantum in Section 4 hereof shall be true and correct as
of the Closing Date with the same force and effect as if they had been made as
of the Closing Date.
(b) Performance of Covenants. Quantum shall have performed all
of its covenants and agreements contained herein which are required to be
performed by it on or prior to the Closing Date.
(c) Filing of Certificate of Designation. Quantum shall have
filed the Certificate of Designation with the Secretary of State of the State of
Delaware.
(d) Officer's Certificate. Quantum shall have delivered to
StorageTek a Compliance Certificate, executed by the President of Quantum, dated
the date of the Closing, to the effect that the conditions specified in
subsections (a) and (b) of this Section 6.1 have been satisfied.
(e) Execution of Letter Agreement. Quantum and StorageTek
shall have each executed and delivered the Letter Agreement.
(f) Injunctions. There shall not be in effect any injunction
that shall have been entered by a court of competent jurisdiction since the date
of this Agreement and that would enjoin the transaction contemplated hereby.
6.2 Conditions to Obligations of Quantum. Quantum's obligation to
purchase the Shares is subject to the satisfaction, on or prior to the Closing,
of the following conditions:
(a) Representations and Warranties True. The representations
and warranties made by StorageTek in Section 3 hereof shall be true and correct
as of the Closing Date with the same force and effect as if they had been made
as of the Closing Date.
(b) Performance of Covenants. StorageTek shall have performed
all of its covenants and agreements contained herein which are required to be
performed by it on or prior to the Closing Date.
(c) Filing of Certificate of Designation. Quantum shall have
filed the Certificate of Designation with the Secretary of State of the State of
Delaware.
(d) Officer's Certificate. StorageTek shall have delivered to
Quantum a Compliance Certificate, executed by the President of StorageTek, dated
the date of the Closing, to the effect that the conditions specified in
subsections (a) and (b) of this Section 6.2 have been satisfied.
(e) Execution of Letter Agreement. Quantum and StorageTek
shall have each executed and delivered the Letter Agreement.
8.
(f) Injunctions. There shall not be in effect any injunction
that shall have been entered by a court of competent jurisdiction since the date
of this Agreement and that would enjoin the transaction contemplated hereby.
(g) Resignation. Xxxx Xxxxxxxx shall have resigned has a
director of QPC effective on the Closing Date.
SECTION 7. MISCELLANEOUS.
7.1 Notices. All notices, requests and other communications to either
party hereunder shall be in writing (including telecopy or similar writing) and
shall be given,
if to StorageTek to:
Storage Technology Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Storage Technology Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
if to QPC, to:
Quantum Peripherals Colorado, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
0 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
9.
if to Quantum, to:
Quantum Corporation
000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
0 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
7.2 Amendments and Waivers.
(a) Any provisions of this Agreement may be amended or waived
prior to the Closing Date if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by StorageTek, Quantum and QPC,
or in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by either party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
7.3 Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
7.4 Attorney's Fees. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against any party hereto, 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).
7.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that neither party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the consent of the other parties hereto.
7.6 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware without regard to the
conflicts of law rules of such State.
10.
7.7 Counterparts; Effectiveness. This Agreement may be signed in two
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
7.8 Entire Agreement. This Agreement and the Letter Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the paries with respect to the
subject matter thereof. This Agreement supersedes and replaces in its entirety
the Stockholders' Agreement. No representation, inducement, promise,
understanding, condition or warranty not set forth herein or therein has been
made or relied upon by either party hereto. None of this Agreement or the Letter
Agreement between StorageTek, Quantum and QPC, nor any provision hereof or
thereof, is intended to confer upon any person other than the parties hereto any
rights or remedies hereunder or thereunder.
7.9 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
7.10 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
7.11 Broker's Fees. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein.
11.
IN WITNESS WHEREOF, the parties hereto have executed this STOCK
PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof.
STORAGE TECHNOLOGY CORPORATION
By: /s/ ON FILE
------------------------------
(Signature)
Title: VICE PRESIDENT
---------------------------
QUANTUM CORPORATION
By: /s/ XXXXXXX X. XXXXX
------------------------------
(Signature)
Title: PRESIDENT AND CEO
---------------------------
QUANTUM PERIPHERALS COLORADO, INC.
By: /s/ XXX X. XXXXXXX
------------------------------
(Signature)
Title: PRESIDENT
---------------------------
12.
