EXHIBIT 10.58
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 26th day of June, 2002, by and between MTI TECHNOLOGY CORPORATION, a
Delaware corporation ("Seller"), and CALDERA INTERNATIONAL, INC., a Delaware
corporation ("Buyer"), based on the following:
PREMISES
A. Buyer is a publicly-held corporation with its common stock, par value
$0.001 per share (the "Common Stock"), traded on the Nasdaq National Market.
B. Seller is a significant stockholder of Buyer, holding in excess of 9%
of the issued and outstanding Common Stock of Buyer. Seller wishes to sell its
position in Buyer in order to obtain liquidity for its own business purposes.
C. Buyer believes that the desire of Seller to sell such a significant
block of stock is hampering its efforts to attract institutional interest in its
Common Stock and may be adversely affecting the trading price of the Common
Stock. Consequently, Buyer believes it would be in the best interest of Buyer
and its shareholders to acquire the shares of Common Stock held by Buyer.
AGREEMENT
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual promises
and covenants hereinafter set forth and the benefit to the parties to be derived
therefrom, it is hereby agreed as follows:
1. Purchase and Sale of Common Stock. On the terms and subject to the
conditions set forth in this Agreement, Seller agrees to sell, convey, and
transfer the 1,189,034 shares of Common Stock of Buyer held by Seller to Buyer,
and Buyer agrees to purchase such shares of Common Stock from Seller.
2. Purchase Price. Buyer agrees to pay a purchase price of $0.90 per
share of Common Stock, for an aggregate purchase price of $1,070,130. Payment of
the purchase price shall be made at Closing by wire transfer or other
immediately available funds acceptable to Seller.
3. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on or before July 8, 2002 (the
"Closing Date"), subject to the satisfaction of the terms and conditions of this
Agreement, at the offices of Xxxx Xxxxxxxx Xxxxx Xxx & Xxxxxxxx, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxx Xxxx Xxxx, Xxxx 00000, or such other time and place as
may be agreed to by the parties.
4. Deliveries at Closing. Contemporaneously with, and as a condition
precedent to, the payment of the purchase price, Seller shall deliver to Buyer
certificates representing the shares of Common Stock to be sold to Buyer by
Seller, duly endorsed by the record owner thereof, or accompanied by duly
executed assignment documents, with all required signatures medallion guaranteed
by a securities
broker-dealer or bank. In addition, Seller shall deliver the resignation of
Xxxxxx X. Xxxxxxxx as a director of Buyer, effective as of the Closing Date.
5. Representations and Warranties of Seller. Seller makes and delivers
the following representations and warranties to Buyer with the express intention
that Buyer rely upon such representations and warranties and with the knowledge
that Buyer will rely upon same:
(a) Seller has taken all corporate action necessary to duly
authorize the transactions contemplated by this Agreement and has all
requisite power and authority to enter into this Agreement and to
perform all of its obligations under this Agreement. Seller is not a
party to, subject to, or bound by any mortgage, deed of trust, loan
agreement, security agreement, lien, or other agreement or instrument of
any kind, or any judgment, order, writ, or injunction or decree of any
court or governmental body that conflicts with Seller's obligations
under this Agreement or that will prohibit, prevent, or affect the
carrying out of the transactions contemplated by this Agreement or the
performance by Seller of any obligations hereunder.
(b) Seller is the sole legal and beneficial owner of all of the
Common Stock being sold to Buyer under the terms of this Agreement, free
and clear of any lien, claim, demand, encumbrance, security interest, or
restriction on transfer of any nature whatsoever, and Seller has full
right, power, and authority to sell and transfer such stock pursuant to
the terms of this Agreement and, upon delivery of the Common Stock to
Buyer, Buyer will acquire good and marketable title to the Common Stock,
free and clear of any liens, claims, demands, encumbrances, security
interests, or restrictions on transfer, other than restrictions imposed
by federal and state securities laws and state corporate laws.
(c) Seller has not entered into an agreement or incurred any
liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the sale of the Common Stock by Seller.
(d) The president and chief executive officer of Seller, Xxxxxx
X. Xxxxxxxx, has served on the board of directors of Buyer since
September 1999 and, as a director, has had full access to information
concerning the business, operations, and strategic plans of Buyer.
(e) Seller has reviewed the public reports of Buyer, including:
- Buyer's annual report on Form 10-K for the year ended
October 31, 2001;
- Buyer's quarterly reports on Form 10-Q for the quarters
ended January 31, 2002, and April 30, 2002;
- Buyer's definitive proxy statement for the stockholder
meeting held March 4, 2002; and
- Buyer's reports on Form 8-K reporting events occurring
on April 1, 2002, May 8, 2002, and May 8, 2002.
(f) Seller has been informed that Buyer has offered to acquire
all of the Common Stock held by Tarantella, Inc. at a purchase price of
$0.95 per share. In addition, Seller has been given an opportunity to
ask questions of and receive answers from, the directors and officers of
2
Buyer concerning the business, assets, operations, and plans of Buyer
and to obtain any additional information concerning Buyer or the Common
Stock requested by Seller.
(g) Seller is entering into this Agreement based on its desire
for liquidity and its own independent business purposes. Seller is not
selling the shares of Common Stock based on any representation or
warranty of Buyer or of any of Buyer's directors, officers, or employees
with respect to the assets, business, operations, or plans of Buyer or
with respect to the Common Stock of Buyer or trading market for such
Common Stock. In reaching its decision, Seller has relied solely on its
review of the available public information concerning Buyer and
independent investigations made by Buyer or its representatives. In
determining to sell its Common Stock, Seller acknowledges that Buyer may
well enjoy substantial business and financial success, the price which
Seller is receiving for its Common Stock may be substantially less than
the potential value of the Common Stock, and the utilization of the
sales proceeds by Seller may not be as profitable as a retained
ownership in Buyer. Notwithstanding the foregoing, Seller wishes to sell
all of its Common Stock in Buyer and thereby completely terminate any
interest it may have in the business, operations, and performance of
Buyer.
(h) All representations and warranties of Seller set forth in
this Agreement or in any other written statement or document delivered
by Seller in connection with the transactions contemplated hereby will
be true and correct in all respects on and as of the Closing Date and
will survive the consummation of the transactions contemplated by this
Agreement.
(i) Seller understands the meaning and legal consequences of the
representations and warranties contained in this Agreement and agrees to
indemnify and hold harmless Buyer and its directors and officers from
and against any and all loss, damage, or liability due to or arising out
of a breach of or the inaccuracy of any representation or warranty of
Seller set forth in this Agreement. Notwithstanding any of the
representations, warranties, acknowledgments, or agreements made herein
by Seller, Seller does not hereby or in any other manner waive any right
granted to Seller under federal or state securities laws.
6. Representation of Buyer. Buyer has taken all corporate action
necessary to duly authorize the transactions contemplated by this Agreement and
has all requisite power and authority to enter into this Agreement and to
perform all of its obligations under this Agreement. Buyer is not a party to,
subject to, or bound by any mortgage, deed of trust, loan agreement, security
agreement, lien, or other agreement or instrument of any kind, or any judgment,
order, writ, or injunction or decree of any court or governmental body that
conflicts with Buyer's obligations under this Agreement or that will prohibit,
prevent, or affect the carrying out of the transactions contemplated by this
Agreement or the performance by Buyer of any obligations hereunder.
7. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions: (i) the representations and warranties
of Seller herein contained shall be true and correct in all material respects on
and as of the Closing Date with the same effect as though made as of such date;
(ii) all necessary filings and/or actions required by applicable securities laws
or the rules of Nasdaq shall have been completed; and (iii) Seller shall have
delivered the certificates representing the Common Stock to Buyer as required by
paragraph 4.
8. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions: (i) the representations and warranties
of Buyer herein contained shall be true and correct in all material respects on
and as of the Closing Date with the same effect as though made as of such date;
(ii) all
3
necessary filings and/or actions required by applicable securities laws or the
rules of Nasdaq shall have been completed; and (iii) Buyer shall deliver the
purchase price as required by paragraph 2.
9. Termination. This Agreement may be terminated: (i) at the election of
Buyer, if any one or more of the conditions to its obligations herein shall not
have been fulfilled by July 8, 2002; or (ii) at the election of Seller, if any
one or more of the conditions to its obligations herein shall not have been
fulfilled by July 8, 2002. This Agreement may also be terminated at any time
prior to the Closing by mutual consent of the parties. Any termination hereunder
shall not limit or otherwise affect the rights of a party against the other
arising from a breach of, or failure to perform as required by, this Agreement.
10. Confidential Information. Seller (i) acknowledges that the
information concerning the Company of which it is aware may include proprietary
and non-public information (the "Confidential Information"); (ii) warrants to
the Company that it shall not use, disclose, or disseminate the Confidential
Information, except for the sole and isolated purpose of making decisions
related to the sale of the Common Stock; and (iii) represents and warrants that
it has not distributed or disseminated, nor will it at any time distribute or
disseminate, the Confidential Information to anyone other than personal advisors
of the Seller, and that the use of the Confidential Information by any personal
advisor has been, and will at all times, be limited to the sole and isolated
purpose of evaluating the proposed sale of the Common Stock. Seller acknowledges
that securities laws prohibit Seller from participating in the public market for
the Common Stock while in the possession of material non-public information.
11. Survival. The representations and warranties of the respective
parties set forth herein shall survive the date of closing, the consummation of
the transactions contemplated in this Agreement, and the delivery of the shares
of Common Stock pursuant hereto.
12. Governing Law. This Agreement shall be governed by and construed
under and in accordance with the laws of the state of Utah.
13. Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof, and there are no
other course of dealings, understandings, agreements, representations, or
warranties, written or oral, except as set forth herein. No amendment or
modification hereof shall be effective until and unless the same shall have been
set forth in writing and signed by the parties hereto.
14. Severability. If any provision of this Agreement or the application
of such provisions to any person or circumstance shall be held invalid or
unenforceable, the remainder of this Agreement or the application of such
provisions to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be effected thereby.
15. Attorneys' Fees. If any suit, action, or proceeding is brought to
enforce any term or provision of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs, and expenses incurred, in
addition to any other relief to which such party may be legally entitled.
16. Execution in Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
17. No Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, in law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation of the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing.
4
18. Expenses. Each of the parties shall bear its own costs and expenses,
including legal fees, incurred in connection with this Agreement and the
transactions contemplated hereby.
19. No Third-Party Beneficiaries. This Agreement is for the sole benefit
of the parties hereto and nothing herein expressed or implied shall give, or be
construed to give, any other person any legal or equitable rights hereunder.
IN WITNESS WHEREOF, the parties to this Agreement have executed the same
as of the date first above written.
Seller:
MTI TECHNOLOGY CORPORATION
By /s/ XXXXXX X. XXXXXXXX, XX.
----------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Vice Chairman, President and Chief
Executive Officer
Buyer:
CALDERA INTERNATIONAL, INC.
By /s/ XXXXXX X. BENCH
-------------------------------
Xxxxxx X. Bench
Chief Financial Officer
5
