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EXHIBIT 10.23
MASTER AGREEMENT
MASTER AGREEMENT (the "Agreement") made as of the __ day of February,
1994, by and between TEAC CORPORATION, a corporation organized and existing
under the laws of Japan having its principal place of business at 3-7-3
Naka-cho, Musashino, Tokyo, Japan ("TEAC"), and JT STORAGE, INC., a Delaware
corporation (the "Corporation").
RECITALS
WHEREAS, Jugi Tandon ("Tandon") has formed the Corporation for the
purpose of developing, manufacturing, marketing, and selling magnetic hard disk
drives initially utilizing the engineering team of Kalok Corporation ("Kalok")
and the Corporation, technologies of TEAC, to be obtained by TEAC pursuant to
an Agreed Order Compromising Controversies (the "Agreed Order"), to be entered
the Bankruptcy Court presiding over the Bankruptcy Case No. 93-54027 MM of
Kalok Corporation, a California corporation ("Kalok"), such technologies to be
licensed by TEAC to the Corporation;
WHEREAS, Tandon and TEAC also desire to establish among Tandon, the
Corporation and TEAC certain cooperative relationships for the purpose of
continuing the development of projects currently in process, developing future
technologies and products and supplying of parts, components, subassemblies and
finished drives; and
WHEREAS, in order effect the contribution and licensing to the
Corporation of certain technologies and assets requisite to the accomplishment
of its purposes, to effect the licensing of certain technologies from TEAC to
the Corporation, and from the Corporation to TEAC and to govern the
relationships amongst Tandon, the Corporation and TEAC as customers, suppliers,
investors, licensees and directors, each such party desire to enter into this
agreement and other related agreements referenced herein or pertinent hereto.
WHEREAS, the Agreed Order (to which TEAC and the Corporation are to be
parties) authorizes certain transactions upon which this Agreement is
predicated, and pursuant to which certain actions of TEAC and the Corporation
will be governed.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Formation of the Corporation. Prior to the Commencement Date (as
hereinafter defined), Tandon shall have caused the Corporation to be formed
under the provisions of the corporation law of the State of Delaware. The
Articles of Incorporation for the Corporation shall be in the form attached
hereto as Exhibit 1.
2. Bylaws. Tandon shall cause the adoption by the Corporation of the
form of By-Laws attached hereto as Exhibit 2 prior to the Commencement Date.
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3. Stockholders' Agreement. Prior to the Commencement Date, TEAC and
the Corporation shall execute and deliver to each other executed counterparts
of the Stockholders' Agreement in the form attached as Exhibit 3 hereto (the
"Stockholders' Agreement").
4. License Agreement. On the Commencement Date, TEAC and the
Corporation, shall deliver to each other executed counterparts of the License
Agreement in the form attached as Exhibit 4 hereto (the "License Agreement").
5. Representations and Warranties of TEAC. As an inducement to Tandon
to enter into and perform its obligations under this Agreement and all of the
other documents, instruments and agreements to be executed and delivered
pursuant hereto or in connection herewith (the "Related Agreements"), TEAC
hereby represents and warrants to Tandon, as of the date of this Agreement and
the Commencement Date, as follows:
a. Organization. TEAC is a corporation duly organized, validly
existing and in good standing under the laws of Japan.
b. Authorization. TEAC has full corporate power and authority
to execute, deliver and perform its obligations under this Agreement and
the Related Agreements to be entered into by TEAC, and the consummation
by TEAC of the transactions contemplated hereby and thereby have been
duly and properly authorized by all requisite corporate action. This
Agreement is, and each of the Related Agreements, when duly executed and
delivered by TEAC will be, valid and binding obligations of TEAC,
enforceable against TEAC in accordance with their respective terms.
c. Investment. TEAC is acquiring its equity interest in the
Corporation for investment purposes only and not with a view towards the
resale thereof in connection with a distribution, it being understood,
subject to the terms of the Stockholders' Agreement, that the
disposition by TEAC of its interests in the Corporation shall at all
times remain within its sole control.
6. Representations and Warranties of the Corporation. As an inducement
to TEAC to enter into and perform its obligations under this Agreement and the
Related Agreements, the Corporation hereby represents and warrants to TEAC, as
of the date of this Agreement and the Commencement Date, as follows:
a. Capitalization. Immediately following the Commencement Date,
the issued and outstanding common capital stock of the Corporation, on a
fully diluted basis, will be as follows:
(i) 10% shares of the Corporation's Common Stock, par
value $.00001 per share (the "Common Stock"), on a
fully diluted basis, owned beneficially and of record
by TEAC.
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(ii) 1,000 shares of Common Stock, owned beneficially and of
record by Tandon.
(iii) A warrant exercisable for 2% of the shares of Common
Stock, issued by the Corporation to the Official
Committee of Unsecured Creditors of Kalok Corporation.
b. Organization of the Corporation. As of the Commencement Date,
the Corporation will be a corporation duly organized, validly existing and in
good standing under the corporation laws of the State of Delaware.
c. Authorization. As of the Commencement Date, the Corporation will
have full corporate power and authority to execute, deliver and perform its
obligations under the Related Agreements to be entered into by the Corporation,
and the consummation by the Corporation of the transactions contemplated thereby
will have been duly and properly authorized by all requisite corporate action.
Each of the Related Agreements, when duly executed and delivered by the
Corporation will be valid and binding obligations of the Corporation,
enforceable in accordance with their respective terms.
7. Contribution and Issuance of Shares.
a. TEAC Contributions. In consideration of the issuance of the
shares of Common Stock of the Corporation referred in Section 6a, TEAC shall
contribute to the Corporation the Hard Assets (as defined in the Agreed Order)
and the rights provided royalty free under Section 3.1 and 3.4 of the License
Agreement.
b. Commencement Date. As used herein, the "Commencement Date" shall
mean 10 a.m. on the first business day following the date on which the last of
the following shall have occurred:
(i) the Order Date shall have occurred;
(ii) Steven Kaczeus and the Engineers listed on Schedule 7B
hereto shall have accepted employment with the
Corporation; and
(iii) all regulatory approvals requisite to the consummation
of the transactions contemplated hereby shall have been
waived or obtained; provided each of the parties shall
undertake the best efforts to obtain approvals to which
it is subject.
In the event that the Commencement Date shall not occur on or before
February , 1994, this Agreement shall become null and void and the parties
shall be under no obligation to consummate the transactions contemplated hereby.
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c. Tandon Contributions. Tandon or his share transferees shall
fund, raise funds or cause there to be funded on an non-debt basis the
amounts required under Schedule 7C on the dates specified therein.
Breach of this Section shall automatically be deemed to be a material
breach of this Agreement for purposes hereof and of the License
Agreement, subject to the sixty (60) day cure period set forth in the
License Agreement.
d. Order Date. As used in this Agreement, the term "Order Date"
shall mean the first business day following the date upon which the
Agreed Order shall be entered by the Bankruptcy Court for the Northern
District of California, San Jose division, substantially in the form of
Exhibit 7D hereto, notwithstanding whether an appeal shall be taken with
respect to the Agreed Order.
8. Omitted.
9. Employment of Engineers. Tandon shall cause the Corporation to
undertake all reasonable efforts to solicit and employ the engineers listed on
Schedule 7B (the "Subject Engineers") hereto and none of the parties hereto or
their respective Affiliates (other than the Corporation) shall solicit to
employ, or employ, any of the Subject Engineers unless the License Agreement
has been terminated in accordance with its terms.
10. Completion of Nordic Project. As essential consideration for TEAC
entering into this Agreement, Tandon agrees to cause the Corporation to promptly
undertake, as a first priority, its best efforts to continue and complete the
development of the 540mb HDD and the hard disk drive technology known as "Nordic
II". Without limiting the foregoing, such efforts shall include the dedication,
as a first priority, of sufficient engineering personnel and resources, the
provision of sufficient funding and materials resources and cooperation with
TEAC engineers, suppliers and potential customers.
11. Bankruptcy Proceeding. The parties hereto shall fully cooperate in
and undertake all reasonable efforts by themselves and their respective counsel
and affiliates to effect all of the transactions contemplated by the Agreed
Order (whether or not a party thereto), including prosecution of the Motion of
Debtor and Debtor-In-Possession in support of Order Approving Compromise of
Controversies and Authority to Enter into Contracts and the entry of the Agreed
Order.
12. Public Disclosure. None of TEAC, the Corporation or Tandon, nor
any of their respective agents or employees, not any persons acting on their
behalf, shall make any formal or informal public release to the press or
otherwise concerning the relationship or relationships of the parties hereto
without the prior consent of the other parties hereto. The following
description may be provided to customers and vendors (other than by press
release):
"Mr. Jugi Tandon has formed JT Storage, Inc., a corporation which
will continue the engineering and development programs of Kalok
Corporation. TEAC Corporation has licensed to JT Storage, Inc. the
principal proprietary technology to be initially
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utilized by JT Storage, Inc. in its product development and has acquired
a minority interest in JT Storage, Inc. The Corporation and TEAC have
licensed certain of their future HDD developments to each other. Certain
key engineers associated with Kalok's development programs have agreed
to join JT Storage, Inc. and will be equity holders of JT Storage, Inc."
13. Confidentiality. Tandon and TEAC each agree, and Tandon agrees to
cause the Corporation, to undertake all reasonable efforts to treat, and to
cause each of its Affiliates, agents and employees to treat, as confidential
(as if it were their own trade secrets) all proprietary information they
receive from each other, whether pursuant hereto, the Related Agreements or
otherwise. The parties hereto acknowledge that the parties hereto may find it
necessary to disclose to third parties proprietary information in connection
with the manufacturing of components, parts and accessories; in such
circumstances, the party hereto may make such information available to third
parties, provided that such party shall first obtain from the recipients a
fully-executed confidentiality agreement which is at least as restrictive as
the confidentiality agreement contained herein. The foregoing shall not
restrict any party's right to provide technical information and test data that
is reasonably requested by customers in the ordinary course of business. None
of the parties shall be bound by the provisions of this Section 15 with respect
to information which (a) is in the public domain at the time of disclosure; (b)
becomes a part of the public domain after the time of disclosure, other than
through disclosure by the recipient or some other third party who is under an
agreement of confidentiality with respect to the subject information or obtained
the information from the recipient; (c) is required to be disclosed by law or
(d) is disclosed by a third party not bound by any agreement of confidentiality
with respect to such information which third party did not obtain the
information from the recipient.
14. Omitted.
15. Other Business Activities; Disclosure and Waiver. The parties
hereto understand that any party hereto or its affiliates may be interested,
directly or indirectly, in various other businesses and undertakings not
included in the Corporation, which may be competitive with the business of the
Corporation. Each party also understands that the conduct of the business of
the Corporation may involve business dealings with such other businesses and
undertakings. The parties hereto hereby agree that, except as expressly
provided herein or in the Related Agreements, the creation of the Corporation
and the assumption and performance by any of the parties of their duties
hereunder shall be without prejudice to their rights (or the rights of their
affiliates) to have such other interests and activities and to receive and
enjoy profits or compensation therefrom, and each party waives and releases any
rights or claims it might otherwise have to share or participate in such other
interests or activities of any party or their affiliates. Except as expressly
provided herein or in the Related Agreements, the parties may engage in or
possess any interest in any other business venture of any nature or description
independently or with others, and neither the Corporation nor any other party
hereto shall have any right by virtue of this Agreement in and to such venture
or the income or profits derived therefrom.
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16. General.
a. Notices. All notices, demands, consents, requests, approvals,
and other communications required or permitted hereunder shall be in writing and
shall be deemed effective only upon delivery (whether receipt is accepted or
refused) at the addresses set forth below (or at such other addresses within the
United States of America as shall be given in writing by any party to the others
in accordance with this Section 16(a). Notices may be delivered by hand, United
States registered or certified mail, return receipt requested, bonded private
courier service or by telecopier (followed immediately in writing by bonded
private courier service).
If to TEAC: TEAC Corporation
3-7-3 Nakacho, Musachino
Tokyo, Japan
Attention: General Manager Disk
Drive Products Division
Facsimile: 0422-52-3771
with copies to: TEAC America, Inc.
7733 Montebello Road
Montebello, California 90640
Attention: Executive Vice President
Facsimile: 213/727-7688
and
Katten Muchin & Zavis
525 West Monroe Street
Chicago, Illinois 60661
Attention: Mark D. Gerstein
Facsimile: 312/902-1061
If to the JT Storage, Inc.
Corporation 2125 Madera Road
Simi Valley, California 93065
Facsimile: 808/582-3227
with a copy to: Riordan & McKenzie
5743 Corsa Avenue, Suite 116
West Lake Village, California 91362
Attention: Lawrence Weeks
Facsimile: 818/706-2956
b. Governing Law. This Agreement shall be construed and enforced
in accordance with, and all questions concerning the construction, validity,
interpretation
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and performance of this Agreement shall be governed by, the laws of the State
of California, without giving effect to provisions thereof regarding conflict
of laws.
c. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
d. Entire Agreement. This Agreement, the Related Agreements and
those documents expressly referred to herein and therein embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
e. Counterparts. This Agreement may be executed on separate
counterparts transmitted by telecopy, each of which is deemed to be an original
and all of which taken together constitute one and the same agreement.
f. Successors; Assigns; Transferees. This Agreement is intended to
bind and inure to the benefit of and be enforceable by each of the parties
hereto and their respective successors and permitted assigns. No party may
assign any of his, her or its rights or obligations hereunder without the
written consent of the other parties.
g. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party hereto.
h. Amendments and Waivers. Any provision of the Agreement may be
amended or waived only with the prior written consent of all of the parties
hereto.
i. Descriptive Headings; Interpretation. The descriptive headings
in this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation. The term "Affiliate" as applied to any
person or entity means any other person or entity directly or indirectly
controlling, controlled by, or under common control with, that person or
entity. The term "control" (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as applied to any
entity, means the possession, directly or indirectly, of the power to vote 50%
or more of the voting stock (or in the case of an entity that is not a
corporation, 50% or more of the ownership interest, beneficial or otherwise) of
such entity or otherwise to direct or cause the direction of the management and
policies
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of that entity, whether through the ownership of voting stock or other
ownership interest, by contract or otherwise. All of executive officers, 50%
shareholders, directors, subsidiaries, joint ventures and partners shall be
deemed to be Affiliates for purposes of this Agreement. All personal pronouns
used in this Agreement, whether used in the masculine, feminine or neuter
genders shall include all genders, the singular shall include the plural and
vice versa and shall refer solely to the parties signatory thereto unless
otherwise specifically provided.
j. Preamble: Preliminary Recitals. The Preliminary Recitals set forth
in the Preamble hereto are hereby incorporated and made part of this Agreement.
k. Consent to Jurisdiction and Service of Process. Each of TEAC and
Tandon hereby consent to the jurisdiction of any state or federal court located
within the County of Los Angeles, State of California and irrevocably agree
that all actions or proceedings arising out of or relating to this Agreement
shall be litigated in such courts. Each of the parties hereto accept for
itself, himself or herself, as the case may be, and in connection with its, his
or her properties, generally and unconditionally, the nonexclusive jurisdiction
of the aforesaid courts and waives any defense of forum non conveniens, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. Each of the parties hereto designate and appoint CT
Corporation System and such other persons as may hereinafter be selected by
them who irrevocably agree in writing to so serve as agent to receive on their
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by each such party to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to each such party hereto as provided herein, except
that unless otherwise provided by applicable law, any failure to mail such copy
shall not affect the validity of service of process. If any agent appointed by
a party hereto refuses to accept service, such party hereby agrees that service
upon it, him or her, as the case may be, by mail shall constitute sufficient
notice. Nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law.
l. WAIVER OF JURY TRIAL; ARBITRATION. (i) EACH OF TEAC AND TANDON
HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED HEREBY. EACH OF TEAC
AND TANDON ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY OTHER PARTY. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS,
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TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. EACH OF TEAC AND TANDON ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF TEAC AND TANDON
FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS, HIS
OR HER, AS THE CASE MAY BE, LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS, HIS OR HER, AS THE CASE MAY BE, JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT;
(ii) (a) If any controversy or claim between the parties hereto arises out
of this Agreement or dispute may, at the election of either party within
10 days of notice of breach hereunder, if any, or with respect to any
matter, not the subject of such a notice, at any time prior to the
filing of an action in a court of proper jurisdiction under clause (i)
above, shall be submitted to binding arbitration in Los Angeles,
California, under the Commercial Arbitration Rules of the American
Arbitration Association; provided further that any matter provided for
in this Agreement to be mutually agreed to, negotiated or otherwise
discussed between the parties shall be subject to arbitration hereunder
only if specifically provided in this Agreement.
(b) One arbitrator shall be appointed under the Commercial Arbitration
Rules of the American Arbitration Association, who shall be a business
person with at least five years experience in the disk drive industry;
provided, however, that if any disagreement arises concerning
specialized matters such as intellectual property rights, product design
or computer engineering, market conditions or importing/exporting
regulations, then the arbitrator shall also have an expertise in such
matters. As soon as the panel has been convened, a hearing date shall be
set within 45 days thereafter. Written submittals shall be presented and
exchanged by both parties 15 days before the hearing date, including
reports prepared by experts upon whom either party intends to rely. At
such time the parties shall exchange copies of all documentary evidence
upon which they will rely at the arbitration
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hearing and a list of the witnesses whom they intend to call to
testify at the hearing. Each party shall also make its
respective experts available for deposition by the other party
prior to the hearing date. The arbitrator shall make its award
as promptly as practicable after conclusion of the hearing.
(c) The arbitrator shall not be bound by the rules of
evidence or civil procedure, but rather may consider such
writings and oral presentations as reasonable businessmen would
use in the conduct of their day-to-day affairs, and may require
the parties to submit some or all of their presentations orally
or in written form as the arbitrators may deem appropriate. It
is in the intention of the parties to limit live testimony and
cross-examination to the extent necessary to insure a fair
hearing to the parties on the matters submitted to arbitration,
and to provide neither party more than ten business days to
present its position. The parties have included the foregoing
provisions limiting the scope and extent of the arbitration with
the intention of providing for prompt, economic and fair
resolution of any dispute submitted to arbitration.
(d) The arbitrator shall have the discretion to award the
costs of arbitration, arbitrators' fees and the respective
attorneys' fees of each party between the parties as they see
fit. Judgment upon the award entered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator
shall make its award in accordance with applicable law and based
on the evidence presented by the parties, and at the request of
either party at the state of the arbitration shall include in
its award findings of fact and conclusions of law both in law
and equity which would be available in a court having
jurisdiction over the parties and over the subject matter of
the dispute. Such powers shall include, but not be limited to,
the power to require specific performance.
(e) The arbitration agreement set forth herein shall not
limit a court from granting a temporary restraining order or
preliminary injunction in order to preserve the status quo of
the parties pending arbitration. Further, the arbitrator shall
have power to enter such orders by way of interim award, and
they shall be enforceable in court.
m. Payment of Fees. In the event of litigation or arbitration of
any dispute or controversy arising from, in, under or concerning this
Agreement or any Related Agreement and any amendments hereof, the prevailing
party or parties in such action shall be entitled to recover from the other
parties in such action, such sums as the court shall fix as reasonable
attorneys' fees and expenses incurred by such parties, allocated as such court
shall determine.
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n. No Broker. The parties hereto hereby represent and warrant to each
other that there are no claims for brokerage or other commissions or finder's
or other similar fees in connection with the transactions covered by this
Agreement insofar as such claims shall be based on arrangements or agreements
made by or on its behalf. The parties hereby agree to indemnify, defend and
hold each other harmless from and against all liabilities, costs, damages and
expenses (including reasonable attorneys' fees) from any such claims based upon
the agreement or alleged agreement of the indemnifying party giving rise to
such claim.
o. No Waiver of Default. No consent or waiver, express or implied, by
any party or of any breach or default by any other party in the performance by
the other of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
any other party of the same or any other obligations of such party hereunder.
Failure on the part of any party to complain of any act or failure to act of
any of the other parties or to declare any other party in default, irrespective
of how long such failure continues, shall not constitute a waiver by any such
party of its rights hereunder.
p. Remedies. Each of the parties confirms that damages at law may be
an inadequate remedy for a breach or threatened breach of this Agreement and
agrees that, in the event of a breach or threatened breach of any provisions
hereof, the respective rights and obligations hereunder shall be enforceable by
specific performance, injunction or other equitable remedy, but nothing herein
contained is intended to, nor shall it limit or affect, any rights at law or by
statute or otherwise of any party aggrieved as against any other party for
breach or threatened breach of any provision hereof, it being the intention by
this section to make clear the agreement of the parties that the respective
rights and obligations of the parties shall be enforceable in equity as well as
at law or otherwise.
q. Future Deliveries. Each party will, from time to time, execute and
deliver such further instruments and do such further acts and things as may be
reasonably requested by any other party to carry out the intent and purposes of
this Agreement.
r. Computation of Time. In the computation of any period of time
provided for in this Agreement, the day of the act or event from which said
period of time runs shall be excluded, and the last day of such period shall be
included unless it is a Saturday, Sunday, or national Japanese or United States
holiday, in which case the period shall be deemed to run until the end of the
next day which is not a Saturday, Sunday, or national Japanese or United States
holiday. As used in this Agreement "business day" for any party shall be a day
which is not a Saturday, Sunday or national Japanese or United States holiday.
Time shall be computed based on Los Angeles local Time.
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IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
TEAC CORPORATION
By:
-----------------------------
a duly authorized signatory
JT STORAGE, INC.
By: /s/ Sirjang Tandon
-----------------------------
a duly authorized signatory
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EXHIBIT TO
MASTER AGREEMENT
Exhibit 1 - Attached
Exhibit 2 - Attached
Exhibit 3 - Attached
Exhibit 4 - Attached
Exhibit 7b - Attached List
Exhibit 7c - $125,000 per month average during each three month period
commencing February 7, 1994 (prorated for such partial month) until
$5,000,000 in the aggregate has been funded into the Corporation.
Funding of the Corporation in excess of $125,000 in any month shall
be credited toward future months and existing average funding until
consumed.
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SCHEDULE 7B
Teddy Hadiono - Servo Engineer
Steve Harris - ASIC Engineer
Larry Hewitt - Electrical Engineer
Steven Kaczeus, Jr. - Mechanical Engineer
Steve Kelly - Read/Write Engineer
Greg Kudo - Mechanical Engineer
Joe Liu - Firmware Engineer
Bill Thanos - VP Engineering
Don Vohar - Firmware Engineer
Rich Albert - Firmware
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EXHIBIT 1
Certificate of Incorporation
of
JT Storage, Inc.
I, the undersigned, for the purposes of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, do
execute this Certificate of Incorporation and do hereby certify as follows:
ARTICLE I
The name of the Corporation is JT Storage, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, 19801,
County of New Castle. The name of the Corporation's registered agent is The
Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is two thousand (2,000). All such shares are to be common
stock, par value of $.000001 per share, and are to be of one class.
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ARTICLE V
The name and mailing address of the Incorporator is Mark A. Morton, One
Rodney Square, P.O. Box 551, Wilmington, Delaware 19899.
ARTICLE VI
The powers of the Incorporator shall terminate upon the filing of this
Certificate of Incorporation. The name and mailing address of the person who
is to serve as the sole director of the Corporation until the first annual
meeting of the stockholders of the Corporation, or until his successor is
elected and qualified, is Rajeev Tandon, 19820 Northridge Road, Chatsworth, CA
91311.
ARTICLE VII
Unless and except to the extent that the By-Laws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
ARTICLE VIII
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized
and empowered to make, alter and repeal the By-Laws of the Corporation, subject
to the power of the stockholders of the Corporation to alter or repeal any
by-law made by the Board of Directors.
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ARTICLE IX
A director of this Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.
ARTICLE X
The Corporation reserves the right at any time, and from time to time,
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law, and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the rights reserved in this
article.
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IN WITNESS WHEREOF, I, the undersigned, being the Incorporator
hereinabove named, do hereby further certify that the facts hereinabove stated
are truly set forth, and accordingly I have hereunto set my hand this 3rd day
of February, 1994.
/s/ Mark Morton
--------------------------------
Mark A. Morton
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EXHIBIT 2
BY-LAWS
OF
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall
be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Board of Directors, or by
a committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority, as expressly provided in a
resolution of the Board of Directors, include the power to call such meetings,
but such special meetings may not be called by any other person or persons.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given that shall state the place, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the certificate of incorporation or
these by-laws, the written notice of any meeting shall be given not less than
ten nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or it after the adjournment a new record date is fixed
for the adjourned meeting, notice of
20
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 1.5. Quorum. Except as otherwise provided by law, the
certificate of incorporation or these by-laws, at each meeting of stockholders
the presence in person or by proxy of the holders of a majority in voting power
of the outstanding shares of stock entitled to vote at the meeting shall be
necessary and sufficient to constitute a quorum. In the absence of a quorum,
the stockholders so present may, by majority vote, adjourn the meeting from
time to time in the manner provided in Section 1.4 of these by-laws until a
quorum shall attend. Shares of its own stock belonging to the corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or
indirectly, by the corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the corporation or any subsidiary of the corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting. The chairman of the
meeting shall announce at the meeting of stockholders the date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote.
Section 1.7. Voting; Proxies. Except as otherwise provided by the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person
or persons to act for him by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period. A proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in accordance
with applicable law bearing a later date to the Secretary of the corporation.
Voting at meetings of stockholders need not be by written ballot. At all
meetings of stockholders for the election of directors a plurality of the votes
cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by law, the certificate of incorporation or
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these by-laws, be decided by the affirmative vote of the holders of a majority
in voting power of the shares of stock which are present in person or by proxy
and entitled to vote thereon.
Section 1.8. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action
in writing without a meeting, shall not be more than ten days from the date
upon which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than
sixty days prior to such other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
of the Board of Directors is required by law, shall be the first date on which
a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action; and (3) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. The Secretary
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where
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the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected by any stockholder
who is present. Upon the willful neglect or refusal of the directors to produce
such a list at any meeting for the election of directors, they shall be
ineligible for election to any office at such meeting. Except as otherwise
provided by law, the stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or
the books of the corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 1.10. Action By Consent of Stockholders. Unless otherwise
restricted by the certificate of incorporation, any action required or permitted
to be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and shall be
delivered (by hand or by certified or registered mail, return receipt requested)
to the corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of minutes of
stockholders are recorded. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 1.11. Inspectors of Election. The corporation may, and shall
if required by law, in advance of any meeting of stockholders, appoint one or
more inspectors of election, who may be employees of the corporation, to act at
the meeting or any adjournment thereof and to make a written report thereof. The
corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. In the event that no inspector so
appointed or designated is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of capital stock of the corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the corporation represented at the meeting
and such inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by law. In
determining the validity and counting
23
of proxies and ballots cast at any meeting of stockholders of the corporation,
the inspectors may consider such information as is permitted by applicable law.
No person who is a candidate for an office at an election may serve as an
inspector at such election.
Section 1.12. Conduct of Meetings. The Board of Directors of the
corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the
corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
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ARTICLE II
Board of Directors
Section 2.1. Number; Qualifications. The Board of Directors shall
consist of one or more members, the number thereof to be determined from time
to time by resolution of the Board of Directors. Directors need not be
stockholders.
Section 2.2. Election; Resignation; Removal; Vacancies. The Board of
Directors shall initially consist of the persons named as directors in the
certificate of incorporation, and each director so elected shall hold office
until the first annual meeting of stockholders or until his successor is
elected and qualified. At the first annual meeting of stockholders or until his
successor is elected and qualified. At the first annual meeting of stockholders
and at each annual meeting thereafter, the stockholders shall elect directors
each of whom shall hold office for a term of one year or until his successor is
elected and qualified. Any director may resign at any time upon written notice
to the corporation. Any newly created directorship or any vacancy occurring in
the Board of Directors for any cause may be filled by a majority of the
remaining members of the Board of Directors, although such majority is less than
a quorum, or by a plurality of the votes cast at a meeting of stockholders, and
each director so elected shall hold office until the expiration of the term of
office of the director whom he has replaced or until his successor is elected
and qualified.
Section 2.3. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined notices thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President, any Vice President, the Secretary, or
by any member of the Board of Directors. Notice of a special meeting of the
Board of Directors shall be given by the person or persons calling the meeting
at least twenty-four hours before the special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board of Directors shall constitute
a quorum for the transaction of business. Except in cases in which the
certificates of
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incorporation, these by-laws or applicable law otherwise provides, the
vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.8. Informal Action by Directors. Unless otherwise
restricted by the certificates of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors,
or of any committee thereof, may be taken without a meeting if all members of
the Board of Directors of such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or such committee.
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ARTICLE III
Committees
Section 3.1 Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of
a member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence
of such rules each committee shall conduct its business in the same manner as
the Board of Directors conducts its business pursuant to Article II of these
by-laws.
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ARTICLE IV
Officers
Section 4.1. Executive Officers; Election; Qualifications; Term of
Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its members. The Board of
Directors may also choose one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer
shall hold office until the first meeting of the Board of Directors after the
annual meeting of stockholders next succeeding his election, and until his
successor is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the corporation. The
Board of Directors may remove any officer with or without cause at any time, but
such removal shall be without prejudice to the contractual rights of such
officer, if any, with the corporation. Any number of offices may be held by the
same person. Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion of the
term by the Board of Directors at any regular or special meeting.
Section 4.2. Powers and Duties of Executive Officers. The officers
of the corporation shall have such powers and duties in the management of the
corporation as may be prescribed in a resolution by the Board of Directors and,
to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his duties.
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ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the corporation by the
Chairman or Vice Chairman of the Board of Directors, if any, or the President
or a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the corporation certifying the number
of shares owned by him in the corporation. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance
of New Certificates. The corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give
the corporation a bond sufficient to indemnify it against any claim that may
be made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
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ARTICLE VI
Indemnification
Section 6.1. Right to Indemnification. The corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable
law as it presently exists or may hereafter be amended, any person who was
or is made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he, or a person
for whom he is the legal representative, is or was a director or officer of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partner-
ship, joint venture, trust, enterprise or nonprofit entity, including service
with respect to employee benefit plans (an "indemnitee"), against all
liability and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such indemnitee. The corporation shall be required to
indemnify an indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if the initiation of such proceeding (or part
thereof) by the indemnitee was authorized by the Board of Directors of the
corporation.
Section 6.2. Prepayment of Expenses. The corporation shall pay the
expenses (including attorney's fees) incurred by an indemnitee in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this Article or otherwise.
Section 6.3. Claims. If a claim for indemnification or payment of
expenses under this Article is not paid in full within sixty days after a
written claim therefor by the indemnitee has been received by the corporation,
the indemnitee may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the corporation shall have the
burden of proving that the indemnitee was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 6.4. Nonexclusivity of Rights. The rights conferred on any
person by this Article VI shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these by-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6.5. Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or
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nonprofit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture,
trust, enterprise or nonprofit enterprise.
Section 6.6. Amendment or Repeal. Any repeal or modification of
the foregoing provisions of this Article VI shall not adversely affect any
right or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE VII
Miscellaneous
Section 7.1. Fiscal Year. The fiscal year of the corporation
shall be determined by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall have the name of
the corporation inscribed thereon and shall be such form as may be approved
from time to time, by the Board of Directors.
Section 7.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committee. Any written waiver of notice, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at nor
the purpose of any regular or special meeting of the stockholders, directors,
or members of a committee of directors need be specified in any written
waiver of notice.
Section 7.4. Interested Directors; Quorum. No contract or transaction
between the corporation and one or more of its directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (1) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if: (1) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum; or (2) the material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and
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the contract or transaction is specifically approved in good faith by vote
of the stockholders; or (3) the contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof, or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum
at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
Section 7.5. Form of Records. Any records maintained by the
corporation in the regular course of its business, including its stock
ledger, books of account, and minute books, may be kept on, or be in the
form of, punch cards, magnetic tape, photographs, microphotographs, or any
other information storage device, provided that the records so kept can be
converted into clearly legible form within a reasonable time.
Section 7.6. Amendment of By-Laws. these by-laws may be altered
or repealed, and new by-laws made, by the Board of Directors, but the
stockholders may make additional by-laws and may alter and repeal any by-laws
whether adopted by them or otherwise.
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and (c) are entitled to recover from any party, breaching the terms hereof,
the profits earned by such breaching party as a portion of the money damages
sought in any suit.
TEAC Corporation DZU AD
By: [sig] By: [sig]
----------------------------- ----------------------------
Its Duly Authorized Signatory Its Duly Authorized Signatory
JT Storage, Inc. DZU Corporation
By: By: [sig]
----------------------------- ----------------------------
Its Duly Authorized Signatory Its Duly Authorized Signatory