EXHIBIT 4.3
FORM OF STOCK AND WARRANT PURCHASE AGREEMENT
THIS STOCK AND WARRANT PURCHASE AGREEMENT is made as of the 1/st/ day
of September 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 000 Xxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and the
purchaser whose name and address is set forth on the signature page hereof (the
"Purchaser").
WHEREAS, the parties hereto acknowledge that, concurrently herewith,
the Company is entering into an agreement with another purchase or purchasers
pursuant to which (i) the Company will offer and sell up to $10,000,000.50
purchase price of its common stock and warrants to purchase up to 1,904,762
shares of common stock on substantially the same terms and conditions set forth
herein and (ii) such purchaser or purchasers will make an investment in the
Company's Scion Photonics venture.
NOW THEREFORE, 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
2,857,142 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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2,857,142 $5.25 $14,999,995.50
SECTION 3. Delivery of the Shares at the Closing. (a) The completion of the
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purchase and sale 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 a
stock certificate or certificates registered in the name of the Purchaser
representing the Shares to be purchased by the Purchaser. The name(s) in which
the stock certificate or 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 certificate or 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 certificate or 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 to the following conditions:
(A) the accuracy of the representations and warranties made by the Company
herein and the fulfillment of those undertakings of the Company to be fulfilled
prior to Closing; (B) the delivery by Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, counsel to the Company, to the Purchaser of a legal
opinion in substantially the form attached hereto as Exhibit A; and (C) delivery
by the Company to the Purchaser of a duly executed warrant in the name of the
Purchaser in substantially the form attached hereto as Exhibit B (the
"Warrant").
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
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duly 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 64,044,268 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 14,972,426 shares of the
Company's Common Stock are outstanding under the Company's stock option plans,
and 1,767,131 shares are available for future grant under these plans. The
Company has issued 2,348,669 shares of Common Stock under its Employee Stock
Purchase Plan and 1,151,331 shares are available for future issuance. The
Company has issued 991,276 shares of Common Stock under the stock match
provisions of its 401(k) Retirement Savings Plan and 408,724 shares are
available for future issuance. Except as disclosed in the Company SEC Documents
(as defined below), 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 the Warrant, and to consummate the transactions
contemplated by this Agreement and the Warrant. 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 and the Warrant has been taken or will be taken prior to the
Closing Date. This Agreement and the Warrant, upon execution and delivery
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by the Company (assuming the due and proper execution and delivery by the
Purchaser, in the case of this Agreement) constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their 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.
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, will be validly issued, fully paid and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable state and
federal securities laws. The Common Stock to be issued upon exercise of the
Warrant (the "Warrant Shares") has been duly authorized and, when issued,
delivered and paid for in the manner set forth in the Warrant, will be validly
issued, fully paid and nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under this Agreement, the Warrant
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 or the Warrant Shares 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
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not 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.
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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 or any significant subsidiary of the Company is a party
which, if adversely determined, would have a Material Adverse Effect.
SECTION 5. Representations and Warranties of the Purchaser. The
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Purchaser 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 a validly existing
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company under the laws of Bermuda. 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 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 has been taken. 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 specific performance and other 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 and the Warrant will 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
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able 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.
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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 and the Warrant Shares are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being or will
be 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, the Purchaser represents that it is familiar
with SEC Rule 144 and 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. (a) The Company shall not, from the
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Closing Date until after the date that is 90 days after the Closing Date (i)
sell shares of Common Stock at a price per share less than $5.25 or (ii) issue
options, warrants, convertible securities or any other instruments convertible
or otherwise exchangeable into shares of Common Stock at a price per share less
than $5.25 or such lower price provided for pursuant to the Company's stock
option plans or Employee Stock Purchase Plan.
(a) In the event the Company sells its Common Stock (or options,
warrants, convertible securities or other securities otherwise convertible into
or exchangeable for Common Stock) at less than $5.25 per share (or, in the case
of options, warrants, convertible securities or any other instruments
convertible or otherwise enchangeable into shares of Common Stock, at a price
lower than the issuance price specifically permitted pursuant to the terms of
the Company's stock option plans or Employee Stock Purchase Plan) for a period
of 90 days after the Closing Date, the Company will issue additional shares of
Common Stock to the Purchaser so that the effective per share purchase price
paid by the Purchaser for the Shares will be reduced to such lower price per
share.
7.2 Notice of Subsequent Financings. So long as the Purchaser owns
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at least 1,000,000 shares of Common Stock, the Company shall give the Purchaser
not less than ten business days notice of any proposed equity financing (other
than proposed sales of shares to be issued upon conversion of existing
securities, shares to be issued in a public offering, shares to be issued to
employees, officers and directors (if approved by the Board of Directors) or
shares to be issued in connection with leases or other transactions not for the
primary purpose of raising capital).
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SECTION 8. Covenants of the Purchaser.
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8.1 Limitations on Disposition. Without in any way limiting any
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other 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 is permitted under the provisions of Rule
144 or its successor; 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 "Market Stand-Off" Agreement. Notwithstanding the foregoing, the
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Purchaser hereby agrees that it will not sell or otherwise transfer or dispose
of any Shares or Warrant Shares for a period of 180 days from the Closing Date,
unless otherwise approved in writing by the Company.
8.3 Prospectus Delivery. The Purchaser hereby covenants with the
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Company not to make any sale of the Shares or Warrant 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 and the Warrant Shares are not
transferable on the books of the Company pursuant to a resale under a
registration statement unless the certificates submitted to the transfer agent
evidencing the Shares and the Warrant Shares is accompanied by a separate
officer's certificate substantially in the form of Appendix II hereto (a)
executed by an officer of, or other authorized person designated by, the
Purchaser, and (b) to the effect that (i) the Shares or Warrant Shares, as the
case may be, 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 will not sell any Shares or Warrant 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.
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8.4 Transfer to an Affiliate. The Purchaser shall have the right to
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transfer any Shares or Warrant Shares to any affiliate of the Purchaser, in each
case free of the restrictions imposed by this Section 8 other than the
requirement as to the legending of the certificates for such securities
specified herein. Notwithstanding Section 8.1 hereof, opinion of counsel shall
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be required for a transfer of Shares or Warrant Shares to an affiliate of the
Purchaser.
SECTION 9. Legends. Each certificate or instrument representing Shares
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and Warrant Shares 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 (UNLESS
SUCH TRANSFER IS TO AN AFFILIATE OF THE HOLDER HEREOF, IN WHICH CASE NO
SUCH OPINION SHALL BE REQUIRED)."
(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 or Warrant Shares, and
may also instruct its transfer agent not to register a transfer of any Shares or
Warrant Shares, unless the conditions specified in the foregoing legends are
satisfied to the extent applicable.
SECTION 10. Registration of the Shares and Warrant Shares; Compliance
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with the Securities Act.
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10.1 Registration Procedures and Expenses. The Company shall:
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(a) within 25 business days after the Closing Date, prepare and
file with the Commission a registration statement (the "Registration Statement")
relating to the sale of the Shares and the Warrant Shares by the Purchaser on
the Nasdaq National Market or the facilities of any 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;
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(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 (including a registration statement on
Form S-1 or an amendment to the Registration Statement converting such
Registration Statement to Form S-1) and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the date specified in Section 10.5 below.
(f) promptly furnish to the Purchaser with respect to the Shares
and Warrant 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 or
Warrant Shares by the Purchaser; provided, however, that the obligation of the
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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
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the Company shall not be required 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 and Warrant Shares pursuant to the Registration Statement, other than
fees and expenses, if any, of counsel or other advisers to the Purchaser or
underwriting discounts, brokerage fees and commissions incurred by the
Purchaser, if any.
10.2 If the Company does not file a Registration Statement as set
forth above (or during each period longer than 10 business days for which the
Registration Statement is not effective after it is initially declared effective
by the Commission), the Purchaser shall be entitled during each such period to
unlimited piggyback registration rights on any offering by the Company (without
cutback), until such time as the Registration Statement is again effective or
until the obligations of the Company set forth in this Section 10.1 terminate
pursuant to Section 10.5 below.
10.3 Transfer of Shares After Registration. The Purchaser agrees that
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it shall not effect any disposition of the Shares or Warrant Shares, 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.
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10.4 Indemnification. In the event any Shares or Warrant Shares are
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included in a 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 or Warrant 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
10.4(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 such 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 pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 10.4(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 10.4(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 10.4(b) exceed the proceeds from the
offering (less any underwriting discounts or commissions paid in connection with
such offering) received by the Purchaser.
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(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
10.4, 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 10.4.
(d) If the indemnification provided for in this Section 10.4 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 10.4(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 10.4 shall survive the completion of any offering of securities in a
registration statement under this Section 10 or otherwise.
10.5 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 and
the Warrant Shares on the date on which all Shares and Warrant 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
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that such conditions are not necessary in order for a transfer of Shares and the
Warrant Shares to comply with the Securities Act.
10.6 Information Available. So long as a registration statement is
---------------------
effective covering the resale of Shares or the Warrant 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 a 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 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 or
the issuance of the Warrant to the Purchaser.
SECTION 12.Notices. All notices, requests, consents and other
-------
communications 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:
Read-Rite Corporation
00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
-11-
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Xxxxx X. Xxx, 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 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 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 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 in accordance with the laws of the State of California.
SECTION 00.Xx 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.
SECTION 19.Expenses. Each of the parties hereto shall pay its own
--------
expenses and the expenses of any of its advisors in connection with the
transactions contemplated by this Agreement; provided, however, that the Company
-------- -------
shall pay 50% of any filing fee of the Purchaser in connection with any HSR
filing by the Purchaser made in connection with the purchase of the Shares or
Warrant Shares.
-12-
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):
Tyco Sigma Limited, a Bermuda company
-------------------------------------
Name of Individual representing
the Purchaser (if an Institution):
Xxxx Xxxxxxxxxx
--------------------------------------
Title of Individual representing
the Purchaser (if an Institution):
Vice President and Director
--------------------------------------
Signature by: Individual Purchaser or Individual
representing the Purchaser:
______________________________________
Address: The Zurich Centre
00 Xxxxx Xxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxx, XX00 Bermuda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
email: xxxxxxxxxxx@xxxx.xxx
-13-
with a copy to: Tyco International (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
email: xxxxxxx@xxxx.xxx
-14-
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, Warrant and Tyco Sigma Limited
Warrant 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 Same
Shares and the Registered Holder listed in ----------------------
response to item 1 above:
3. The mailing address of the Registered Holder Same as Purchaser
listed in response to item 1 above: address
______________________
______________________
______________________
4. The Social Security Number or Tax Identification
Number of the Registered Holder listed in
response to item 1 above: N/A
-----------------------
I-1
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, Warrant Shares underlying the Warrant 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:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
I-2
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
PURSUANT TO A REGISTRATION 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: ______________________
II-1
EXHIBIT A
Form of Opinion
of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
A-1
EXHIBIT B
Form of Warrant
B-1
