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Exhibit
10.34
STOCK REPURCHASE
AGREEMENT
This Stock Repurchase
Agreement (the “Agreement”) is entered into as of
February 2, 2005 between Jack Randall, an individual
(“Seller”), and Rackable Systems, Inc. (f/k/a Rackable
Corporation), a Delaware corporation (the
“Company”).
RECITALS
WHEREAS, Seller is the owner
of 2,299,023 shares of Common Stock of the Company; and
WHEREAS, Seller desires to
sell and the Company desires to purchase Four Hundred Eight
Thousand Forty One (408,041) shares of Common Stock of the Company
(the “Shares”) for an aggregate purchase price of One
Million Nine Hundred Ninety Nine Thousand Nine Hundred Ninety Eight
Dollars and Eleven Cents ($1,999,998.11), in accordance with the
terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual covenants set forth in the Agreement
and other good and valuable consideration, the parties agree as
follows:
Article 1 .
Purchase of Shares . Concurrently with the execution of this
Agreement, Seller hereby sells the Shares to the Company and the
Company hereby purchases the Shares for a total purchase price of
One Million Nine Hundred Ninety Nine Thousand Nine Hundred Ninety
Eight Dollars and Eleven Cents ($1,999,998.11) (the “Purchase
Price”). Upon execution of this Agreement, the Company shall
pay the Purchase Price for the Shares in immediately available
funds by check or by wire transfer to an account designated by
Seller, and Seller shall deliver stock certificates representing
the Shares together with an executed assignment separate from
certificate transferring the Shares to the Company or otherwise
properly endorsed for transfer. The Company’s officers shall
thereafter cause the Shares to be cancelled on the books of the
Company.
Article 2 .
Representations and Warranties of Seller . Seller represents
and warrants to the Company that:
(a) Seller is the owner, free
and clear of any liens, encumbrances, security agreements, options,
claims, charges, or restrictions, except as set forth in (a) the
Founders Repurchase and Rights Agreement entered into by and among
the Company, GNJ, Inc. (f/k/a Rackable Systems, Inc.)
(“OldCo”), Rackable Investment LLC (“Investment
LLC”), Seller, Nikolai Gallo and Giovanni Coglitore dated as
of December 23, 2002, (b) the Stockholders Voting Agreement entered
into by and among the Company, OldCo, Investment LLC, Seller,
Nikolai Gallo and Giovanni Coglitore dated as of December 23, 2002,
and (c) the Registration
Rights Agreement entered into by and
among the Company, OldCo, Investment LLC, Seller, Nikolai Gallo and
Giovanni Coglitore dated as of December 23, 2002.
(b) Seller has full power and
capacity to execute, deliver and, subject to consent of the Board
of Directors of the Company, perform under this Agreement, which
has been duly executed and delivered by, and evidences the valid
and binding obligation of the Seller in accordance with its terms.
Upon its execution and delivery, this Agreement will be a valid and
binding obligation of Seller, enforceable in accordance with its
terms.
(c) Seller has entered into
this Agreement based on its own investigation and analysis and that
of its advisors, including legal counsel. Seller has had an
opportunity to review the Agreement and has conducted all due
diligence and received all materials and information that it deems
relevant, including the Company’s future business prospects,
in connection with its decision to sell the Shares under this
Agreement. Seller has had the opportunity to ask questions of and
receive answers from the Company and its management regarding the
terms applicable to the Shares and regarding all information
applicable to Seller’s decision to enter into this Agreement.
Seller understands that the Company’s plans for the future
may result in the Company’s Common Stock becoming
significantly more valuable, including potentially an initial
public offering, and that the future value of the Shares could far
exceed the amounts such Seller will receive under this Agreement.
Seller has determined to forego the possibility of such future
value to obtain the consideration being paid pursuant hereto at the
present time. The Company has not made any representation to such
Seller about the advisability of this decision or the potential
future value of the Shares.
(d) Seller has had an
opportunity to review the federal, state and local tax consequences
of the sale of the Shares to the
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