Exhibit 10.1
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT (this "Agreement") dated as of June 28, 2007
between Western Digital Corporation, a Delaware corporation ("Parent"), State M
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), and the individuals listed on Annex I (each, a "Shareholder"), each a
"beneficial owner" of Company Common Stock (as defined in Rule 13d-3 under the
Exchange Act) of Komag, Incorporated, a Delaware corporation (the "Company").
WHEREAS, as of the date hereof, each Shareholder is the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act) of the number of shares of
Company Common Stock set forth opposite the Shareholder's name under the heading
"Shares Beneficially Owned" on Annex I hereto (all such directly owned shares of
Company Common Stock that are outstanding as of the date hereof and that are
hereafter issued to or otherwise acquired or owned by such Shareholder,
respectively, before the termination of this Agreement (including pursuant to
any acquisition by purchase, exercise of Company Stock Options, warrants or any
other rights to acquire shares, any stock dividend, distribution, split-up,
recapitalization, combination or similar transaction or the vesting of any
Company Stock Purchase Rights), being referred to herein as the "Subject
Shares");
WHEREAS, as a condition to their willingness to enter into the Agreement
and Plan of Merger (the "Merger Agreement") dated as of the date hereof among
Parent, Sub and the Company, Parent and Sub have requested that each Shareholder
and, in order to induce Parent and Sub to enter into the Merger Agreement, each
Shareholder (only in the Shareholder's capacity as a shareholder of the Company)
has agreed to, enter into this Agreement;
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Merger Agreement, and
the other definitional and interpretative provisions set forth in Section 9.04
of the Merger Agreement shall apply hereto as if such provisions were set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO TENDER
Section 1.01. Agreement to Tender. Each Shareholder agrees that such
Shareholder shall duly tender in the Offer all of such Shareholder's Subject
Shares pursuant to and in accordance with the terms of the Offer. Promptly, but
in any event no later than the fifth Business Day prior to the initial
expiration date of the Offer, such Shareholder shall (i) deliver to the
depositary designated in the Offer (the "Depositary") (A) a letter of
transmittal with respect to all such Shareholder's Subject Shares complying with
the terms of the Offer, (B) a certificate or certificates representing such
Subject Shares or an "agent's message" (or such other evidence, if any, of
transfer as the Depositary may reasonably request) in the case of a book-entry
transfer of any uncertificated Subject Shares and (C) all other documents or
instruments required to be
delivered pursuant to the terms of the Offer, and/or (ii) instruct such
Shareholder's broker or such other Person that is the holder of record of any
Subject Shares beneficially owned by such Shareholder to tender such Subject
Shares pursuant to and in accordance with the terms of the Offer. Each
Shareholder agrees that once such Shareholder's Subject Shares are tendered in
the Offer, such Shareholder shall not withdraw any of such Subject Shares from
the Offer unless and until (i) the Offer shall have been terminated in
accordance with the terms of the Merger Agreement or (ii) this Agreement shall
have been terminated in accordance with Section 4.03 hereof, provided, however,
that (i) a Shareholder shall not be required for purposes of this Agreement to
exercise any unexercised Company Stock Options or Company Stock Purchase Rights
held by such Shareholder; and (ii) a Shareholder shall not have any obligation
under this Section 1.01 to tender his or her Subject Shares into the Offer if
that tender would cause him or her to incur liability under Section 16(b) of the
Exchange Act.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder individually represents and warrants to Parent and Sub,
as to itself, that:
Section 2.01. Authorization; Binding Agreement. The execution, delivery
and performance by such Shareholder of this Agreement and the consummation of
the transactions contemplated hereby and thereby are within his or her legal
capacity and requisite powers, and if this Agreement is being executed in a
representative or fiduciary capacity, the Person signing this Agreement has full
power and authority to execute, deliver and perform this Agreement. This
Agreement constitutes the valid and binding agreement of such Shareholder
enforceable against such Shareholder in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, moratorium and
other similar applicable Laws affecting creditors' rights generally and by
general principles of equity.
Section 2.02. Non-Contravention. The execution, delivery and performance
by the Shareholder of this Agreement and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) violate any applicable
Laws or Order applicable to such Shareholder or such Shareholder's Subject
Shares or (ii) require any consent or other action by, or filing with or notice
to, any Person (including any Governmental Entity) under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration
under any Contract or other instrument binding on such Shareholder or any
applicable Law or Order, in each case that would negatively impact Shareholder's
ability to perform its obligations hereunder.
Section 2.03. Ownership of Subject Shares; Total Shares. Such Shareholder
is the sole "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)
of the respective Subject Shares, free and clear of any Lien and any other
limitation or restriction (including any restriction on the right to vote or
otherwise transfer such Subject Shares), except as provided hereunder or any
applicable restrictions on transfer under the Securities Act or, with respect to
Company Stock Purchase Rights, the applicable documents and agreements governing
the applicable Subject Shares. As of the date hereof, such Shareholder does not
own, beneficially or otherwise, any Company Securities other than the shares of
Company Common Stock (including
those issuable upon exercise of the Company Stock Options and Company Stock
Purchase Rights) set forth opposite such Shareholder's name under the heading
"Shares Beneficially Owned" on Annex I.
Section 2.04. Voting Power. Such Shareholder has sole voting power, sole
power of disposition, sole power to issue instructions with respect to the
matters set forth herein, and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the respective
Subject Shares, with no limitations, qualifications or restrictions on such
rights, except as provided hereunder. None of such Shareholder's Subject Shares
are subject to any voting trust or other agreement or arrangement with respect
to the voting of such Subject Shares, except as provided hereunder.
Section 2.05. Finder's Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission in connection with the
transactions contemplated by the Merger Agreement or this Agreement based upon
any arrangement or agreement made by or on behalf of such Shareholder.
Section 2.06. Reliance By Parent. Such Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
each Shareholder's execution and delivery of this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Section 3.01. Authorization; Binding Agreement; Non-Contravention. Each of
Parent and Sub hereby, jointly and severally, represents and warrants to each
Shareholder as follows:
(a) Each of Parent and Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated, and each of Parent and Sub has all requisite corporate power and
corporate authority to execute and deliver this Agreement and to perform its
obligations hereunder and consummate the transactions contemplated hereby, and
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and Sub, and constitutes a valid and binding obligation of
Parent and Sub enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium and other
similar applicable Laws affecting creditors' rights generally and by general
principles of equity.
(c) The execution and delivery of this Agreement and the
consummation by Parent and Sub of the transactions contemplated hereby will not
(i) result in a violation of, or a default under, or conflict with (x) any
provisions of the organizational documents of Parent or Sub or (y) any Contract
to which such Parent or Sub is a party or by which Parent or Sub or their assets
are bound, or (ii) violate any applicable Laws or Order applicable to Parent,
Sub or their respective assets, in each case that would negatively impact
Parent's or Sub's ability to perform its obligations hereunder.
ARTICLE 4
ADDITIONAL COVENANTS OF THE SHAREHOLDERS
Subject to Section 5.16, each Shareholder hereby covenants and agrees,
individually and not jointly, that:
Section 4.01. Voting Of Subject Shares. At every meeting of the
shareholders of the Company called, and at every adjournment or postponement
thereof, such Shareholder shall, or shall cause the holder of record on any
applicable record date to, vote his or her Subject Shares (to the extent that
any of the Shareholder's Subject Shares are not purchased in the Offer) (i) in
favor of the adoption of the Merger Agreement, and (ii) against (A) any
Acquisition Proposal or any agreement or arrangement related to any Acquisition
Proposal, or (B) any other transaction that is designed to, or the consummation
of which would, impede, interfere with, prevent or materially delay the Offer or
the Merger. In the event that any meeting of the shareholders of the Company is
held, the Shareholder shall, or shall cause the holder of record on any
applicable record date to, appear at such meeting or otherwise cause his or her
Subject Shares (to the extent that any of such Shareholder's Subject Shares are
not purchased in the Offer) to be counted as present thereat for purposes of
establishing a quorum.
Section 4.02. Irrevocable Proxy. In order to secure the performance of
such Shareholder's obligations under this Agreement, by entering into this
Agreement, subject to the terms and conditions hereof and in accordance with
Section 212 of the DGCL, the Shareholder hereby irrevocably grants a proxy
appointing each executive officer of Parent as such Shareholder's
attorney-in-fact and proxy, with full power of substitution, for and in his, her
or its name, to vote, express consent or dissent, or otherwise to utilize such
voting power in the manner contemplated by Section 3.01 as such attorney-in-fact
and proxy, in his or her sole discretion, deems proper with respect to the
Shareholder's Subject Shares. Such Shareholder agrees to deliver a separate,
executed proxy to Parent in the form attached hereto as Annex II concurrently
with this Agreement. The proxy granted by such Shareholder pursuant to this
Section 3.02 shall be revoked upon termination of this Agreement in accordance
with its terms. Such Shareholder hereby revokes any and all previous proxies
granted with respect to such Shareholder's Subject Shares.
Section 4.03. No Transfers; No Inconsistent Arrangements. (a) Except as
provided hereunder or under the Merger Agreement, such Shareholder shall not,
directly or indirectly, (i) tender the respective Subject Shares into any tender
or exchange offer commenced by any party other than Parent or Sub, (ii) Transfer
(as defined below), or consent to or permit any Transfer of, any or all of the
respective Subject Shares or any interest therein, or create any Lien, other
than any restrictions imposed by applicable Laws or pursuant to this Agreement,
on any such Subject Shares, (iii) enter into any Contract with respect to any
Transfer of such Subject Shares or any interest therein, (iv) grant or permit
the grant of any proxy, power of attorney or other authorization in or with
respect to such Subject Shares, (v) deposit or permit the deposit of such
Subject Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Subject Shares, or (vi) take or permit any
other action that would restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby or otherwise make
any representation or warranty of such Shareholder contained herein untrue or
incorrect in any respect that would negatively impact Parent's or Sub's ability
to
perform its obligations hereunder. Notwithstanding the foregoing, such
Shareholder may Transfer Subject Shares (A) to a family member or trust for
estate planning purposes, provided that, as a condition to any such Transfer to
a family member or trust, the transferee has agreed with Parent in writing to be
bound by the terms of this Agreement (including granting a Proxy as contemplated
hereby) and to hold such Subject Shares subject to all the terms and provisions
of this Agreement, (B) pursuant to the existing terms and conditions of such
Shareholder's current stock trading plan established in accordance with Rule
10b5-1 of the Exchange Act and (C) in connection with the vesting of Company
Stock Purchase Rights to satisfy applicable tax obligations.
(b) Any attempted Transfer of Subject Shares or any interest therein
in violation of this Section 4.03 shall be null and void. In furtherance of this
Agreement, such Shareholder shall and hereby does authorize the Company to
notify the Company's transfer agent that there is a stop transfer restriction
with respect to all of the respective Subject Shares (and that this Agreement
places limits on the voting and transfer of such Subject Shares); provided that
any such stop transfer restriction shall terminate upon the termination of this
Agreement in accordance with its terms and, upon such event, Parent shall notify
the Company's transfer agent of such termination.
(c) For purposes of this Agreement, a Shareholder shall be deemed to
"Transfer" Subject Shares if such Shareholder, other than by operation of
applicable Laws or Order, (i) sells, pledges, encumbers, grants an option with
respect to (including any short sale), establishes an open "put equivalent
position" within the meaning of Rule 16a-h under the Exchange Act, transfers or
otherwise disposes of such security or any interest therein, (ii) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance of,
grant of an option with respect to (including any short sale), establishment of
a "put equivalent position" with respect to, transfer of or other disposition of
such security or any interest therein, or (iii) enters into any swap or other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequences of ownership of any Shares, whether any
such swap or transaction is to be settled by delivery of Shares or other
securities, in cash or otherwise.
Section 4.04. No Solicitation; Other Offers. Such Shareholder shall not
take any action that the Company is prohibited from taken by Section 5.02 of the
Merger Agreement.
Section 4.05. Appraisal Rights. Such Shareholder agrees not to exercise
any rights (including, without limitation, under Section 262 of the Delaware
General Corporation Law) to demand appraisal of any Subject Shares that may
arise with respect to the Merger.
Section 4.06. Legends. If so requested by Parent, the Shareholder agrees
that such Shareholder's Subject Shares shall bear a legend stating that they are
subject to this Agreement.
Section 4.07. Documentation and Information. Such Shareholder consents to
and authorizes the publication and disclosure by Parent of such Shareholder's
identity and holding of Subject Shares, and the nature of such Shareholder's
commitments, arrangements and understandings under this Agreement in any press
release relating to the Offer, the Merger or any transactions contemplated by
the Merger Agreement, the Offer Documents, or any other disclosure document
required by applicable Laws in connection with the Offer, the Merger and
any transactions contemplated by the Merger Agreement. Such Shareholder agrees
to promptly notify Parent of any required corrections with respect to any
written information supplied by it specifically for use in any such disclosure
document, if and to the extent it shall have become false or misleading in any
material respect.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by facsimile or sent, postage prepaid, by registered, certified or
express mail or reputable overnight courier service and shall be deemed given
when so delivered by hand or sent by facsimile (receipt confirmed), or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows (or at such other address for a party
as shall be specified by notice given in accordance with this Section 5.01):
if to Parent or Sub, to:
Western Digital Corporation
00000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxx, Esq./Xxxxx X. Xxxxxxxx, Esq.
if to a Shareholder, to the address or facsimile set forth on the
signature page hereto.
Section 5.02. Further Assurances. Each Shareholder will, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Parent or Sub may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement and to
vest the power to vote such Shareholder's Subject Shares as contemplated by
Sections 4.01 and 4.02.
Section 5.03. Termination. This Agreement shall terminate upon the earlier
of (i) the termination of the Merger Agreement in accordance with its terms, or
(ii) the Effective Time. Notwithstanding the foregoing, nothing set forth in
this Section 5.03 or elsewhere in this Agreement shall relieve either party
hereto from liability, or otherwise limit the liability of either party hereto,
for any breach of this Agreement.
Section 5.04. Survival Of Representations And Warranties. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective Time.
Section 5.05. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or, in the
case of a waiver, by each party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by applicable Laws.
Section 5.06. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section 5.07. Binding Effect; Assignment. (a) The provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. No provision of this
Agreement is intended to confer any rights, benefits, remedies, obligations or
liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
(b) Except for Transfers pursuant to Sections 4.03(a)(B) and
4.03(a)(C), no Shareholder may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of Parent.
(c) Neither Parent not Sub may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the Shareholders; provided that Parent and Sub may transfer or assign
its rights and obligations under this Agreement, in whole or from time to time
in part, to one or more of its Affiliates at any time.
Section 5.08. Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware, regardless of
the Laws that might otherwise govern under applicable conflicts of Law rules
thereof.
Section 5.09. Consent to Jurisdiction; Service of Process; Venue. Each of
the parties hereto irrevocably and unconditionally submits to the exclusive
jurisdiction of the Delaware Court of Chancery (and if jurisdiction in the
Delaware Court of Chancery shall be unavailable, any Delaware State court and
the Federal court of the United States of America sitting in the State of
Delaware) for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby (and agrees that no
such action, suit or proceeding relating to this Agreement shall be brought by
it or any of its affiliates except in such courts). Each of the parties further
agrees that, to the fullest extent permitted by applicable Laws, service of any
process, summons, notice or document by U.S. registered mail to such person's
respective address set forth above shall be effective service of process for any
action,
suit or proceeding in the State of Delaware with respect to any matters to which
it has submitted to jurisdiction as set forth above in the immediately preceding
sentence. Each of the parties hereto irrevocably and unconditionally waives (and
agrees not to plead or claim), any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the Delaware Court of Chancery (and if the Delaware Court
of Chancery shall be unavailable, in any Delaware State court or the Federal
court of the United States of America sitting in the State of Delaware) or that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
Section 5.10. Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable Laws, any right it may have to a
trial by jury in respect of any suit, action or other proceeding directly or
indirectly arising out of, under or in connection with this Agreement. Each
party hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such party would not,
in the event of any action, suit or proceeding, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement, by, among other things, the mutual waiver
and certifications in this Section 5.10.
Section 5.11. Counterparts. This Agreement may be executed in one or more
counterparts (including by facsimile), all of which shall be considered one and
the same agreement and shall become effective when one or more such counterparts
have been signed by each of the parties and delivered to the other parties.
Section 5.12. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of this
Agreement.
Section 5.13. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
Section 5.14. Specific Performance. The parties agree that irreparable
damage would occur to Parent and Sub in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that Parent and Sub shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
by the Shareholders and to enforce specifically the terms and provisions of this
Agreement in the Delaware Court of Chancery (and if the Delaware Court of
Chancery shall be unavailable, in any Delaware State court or the Federal court
of the United States of America sitting in the State of Delaware), this being in
addition to any other remedy to which Parent and Sub are entitled at Law or in
equity.
Section 5.15. Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed again the party drafting such agreement or document.
Section 5.16. Shareholder Capacity. Notwithstanding any provision of this
Agreement to the contrary, nothing in this Agreement shall, or shall require any
Shareholder to attempt to, limit or restrict any Shareholder (or designee of any
Shareholder) who is a director or officer of the Company from acting or voting
in such capacity in such person's discretion, it being understood that this
Agreement shall apply to each Shareholder solely in such Shareholder's capacity
as a shareholder of the Company and no Shareholder who is or becomes a director
or officer of the Company makes any agreement or understanding herein in his or
her capacity as such director or officer.
Section 5.17. Shareholder Obligations Individual. The obligations of each
Shareholder hereunder shall be individual and not joint or several and no
Shareholder shall be liable for any breach of the terms of this Agreement by any
other Shareholder.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
or have caused this Agreement to be duly executed by their respective authorized
officers, as of the day and year first above written.
WESTERN DIGITAL CORPORATION
By: /S/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Title: President and CEO
STATE M CORPORATION
By: /S/ XXX XXXXXX
-------------------------------------
Name: Xxx Xxxxxx
Title: President
THE SHAREHOLDERS:
Xxxxxxxx X. Xxxxxxx Xxxx X. Xxxxx
/S/ XXXXXXXX X. XXXXXXX /S/ XXXX X. XXXXX
------------------------------------ -----------------------------------------
Facsimile No.:______________________ Facsimile No.:___________________________
Address:____________________________ Address:_________________________________
/S/ XXXXX X. XXXX /S/ XXXXXXX X. XXXXXX
------------------------------------ -----------------------------------------
Xxxxx X. Xxxx Xxxxxxx X. Xxxxxx
____________________________________ _________________________________________
Facsimile No.:______________________ Facsimile No.:___________________________
Address:____________________________ Address:_________________________________
[SIGNATURE PAGE TO TENDER AND VOTING AGREEMENT]
Xxxxxxx X. Xxxxxxx Xxx X. Xxxxxx
/S/ XXXXXXX X. XXXXXXX /S/ XXX X. XXXXXX
------------------------------------ -----------------------------------------
Facsimile No.:______________________ Facsimile No.:___________________________
Address:____________________________ Address:_________________________________
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxx
/S/ XXXXX X. XXXXXX /S/ XXXXXXX X. XXXXX
------------------------------------ -----------------------------------------
Facsimile No.:______________________ Facsimile No.:___________________________
Address:____________________________ Address:_________________________________
Xxxxx X. Xxxxxx Xxxxx X. Xxx Xxxxxx
/S/ XXXXX X. XXXXXX /S/ XXXXX X. XXX XXXXXX
------------------------------------ -----------------------------------------
Facsimile No.:______________________ Facsimile No.:___________________________
Address:____________________________ Address:_________________________________
Xxxxxx X. Xxxx Xxxxxxx Xxx Xxxxxxx
/S/ XXXXXX X. XXXX /S/ XXXXXXX XXX XXXXXXX
------------------------------------ -----------------------------------------
Facsimile No.:______________________ Facsimile No.:___________________________
Address:____________________________ Address:_________________________________
Xxxxxxx X. Xxxxxxxxx
/S/ XXXXXXX X. XXXXXXXXX
------------------------------------
Facsimile No.:______________________
Address:____________________________
[SIGNATURE PAGE TO TENDER AND VOTING AGREEMENT]
ANNEX I
SECURITIES OWNED AS OF JUNE 26, 2007
TOTAL SHARES
BENEFICIALLY OWNED
AS OF DATE OF
NAME COMMON STOCK STOCK OPTIONS AGREEMENT
-------------------- ------------ ------------- ------------------
Xxxxxxxx X. Xxxxxxx 31,250 (1) 2,646 (2) 33,896
Xxxx X. Xxxxx 4,269 (1) 313 (2) 4,582
Xxxxx X. Xxxx 9,170 (1) 938 (2) 10,108
Xxxxxxx X. Xxxxxx 117,576 (1) 25,000 (2) 142,576
Xxxxxxx X. Xxxxxxx 23,007 (1) 10,000 (2) 33,007
Xxx X. Xxxxxx 24,730 (1) 7,501 (2) 32,231
Xxxxx X. Xxxxxx 28,003 (1) 2,085 (2) 30,088 (3)
Xxxxxxx X. Xxxxx 11,170 (1) 19,271 (2) 30,441
Xxxxx X. Xxxxxx 11,170 (1) 4,271 (2) 15,441
Xxxxx X. Xxx Xxxxxx 9,170 (1) 4,271 (2) 13,441
Xxxxxx X. Xxxx 9,170 (1) 1,250 (2) 10,420
Xxxxxxx Xxx Xxxxxxx 9,170 (1) 19,271 (2) 28,441
Xxxxxxx X. Xxxxxxxxx 43,117 (1) 782 (2) 43,899
-----
(1) Includes, for the applicable director or executive officer, the following
outstanding unvested shares of Common Stock held in a reserve account
maintained by the Company's transfer agent; such shares will be released
from such reserve account as they vest:
NAME NO. OF SHARES
-------------------- -------------
Xxxxxxxx X. Xxxxxxx 22,894
Xxxx X. Xxxxx 4,269
Xxxxx X. Xxxx 4,269
Xxxxxxx X. Xxxxxx 117,576
Xxxxxxx X. Xxxxxxx 9,871
Xxx X. Xxxxxx 18,838
Xxxxx X. Xxxxxx 14,560
Xxxxxxx X. Xxxxx 4,269
Xxxxx X. Xxxxxx 4,269
Xxxxx X. Xxx Xxxxxx 4,269
Xxxxxx X. Xxxx 4,269
Xxxxxxx Xxx Xxxxxxx 4,269
Xxxxxxx X. Xxxxxxxxx 43,117
(2) Includes, for the applicable director or executive officer, the following
shares that may be acquired upon the exercise of Company Stock Options
within 60 days of June 26, 2007, of which the following shares are
unvested as of June 26, 2007:
SHARES EXERCISABLE WITHIN SHARES VESTED
NAME 60 DAYS OF JUNE 26, 2007 AS OF JUNE 26, 2007
-------------------- ------------------------- -------------------
Xxxxxxxx X. Xxxxxxx 2,646 2,385
Xxxx X. Xxxxx 313 105
Xxxxx X. Xxxx 938 730
Xxxxxxx X. Xxxxxx 25,000 -0-
Xxxxxxx X. Xxxxxxx 10,000 9,167
Xxx X. Xxxxxx 7,501 7,084
Xxxxx X. Xxxxxx 2,085 1,824
Xxxxxxx X. Xxxxx 19,271 19,063
Xxxxx X. Xxxxxx 4,271 4,063
Xxxxx X. Xxx Xxxxxx 4,271 4,063
Xxxxxx X. Xxxx 1,250 833
Xxxxxxx Xxx Xxxxxxx 19,271 19,063
Xxxxxxx X. Xxxxxxxxx 782 521
(3) Does not include Company Stock Purchase Rights with respect to 12,500
vested shares issuable pursuant to the Company's Deferred Compensation
Plan, all of which are scheduled for release in November 2007; however,
all of such shares may be withdrawn at any time with a 10% (1,250 share)
forfeiture penalty.
ANNEX II
FORM OF IRREVOCABLE PROXY
The undersigned Shareholder (the "Shareholder") of Komag, Incorporated, a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints each of the executive officers of Western Digital
Corporation, a Delaware corporation ("Parent"), and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company held by the
undersigned that are outstanding as of the date hereof and that are hereafter
issued to or otherwise acquired or owned by the undersigned (including pursuant
to any acquisition by purchase, exercise of Company Stock Options, warrants or
any other rights to acquire shares, any stock dividend, distribution, split-up,
recapitalization, combination or similar transaction or the vesting of any
Company Stock Purchase Rights) (collectively, the "Subject Shares") in
accordance with the terms of this Irrevocable Proxy until the Expiration Date
(as defined below). Upon the undersigned's execution of this Irrevocable Proxy,
any and all prior proxies given by the undersigned with respect to any Subject
Shares are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Subject Shares until after the Expiration Date.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement (as defined
below).
This Irrevocable Proxy is irrevocable to the fullest extent permitted by
law, is coupled with an interest and is granted pursuant to that certain Tender
and Voting Agreement of even date herewith by and among Parent and the
undersigned Shareholder (the "Tender and Voting Agreement") in consideration of
Parent's entering into that certain Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), among Parent, State M Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("Sub"), and the Company. The
Merger Agreement provides for, among other things, a tender offer by Sub for
each of the issued and outstanding shares of common stock, par value $0.01 per
share, of the Company ("Company Common Stock"), and the subsequent merger of Sub
with and into the Company.
As used herein, the term "Expiration Date" shall mean the earlier to occur
of (i) such date and time as the Merger Agreement shall have been terminated in
accordance with its terms or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time before the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Subject Shares,
and to exercise all voting, consent and similar rights of the undersigned with
respect to the Subject Shares (including, without limitation, the power to
execute and deliver written consents) at every annual, special, adjourned or
postponed meeting of shareholders of the Company and in every written consent in
lieu of such meeting: (i) in favor of the adoption of the Merger Agreement, and
(ii) against (A) any Acquisition Proposal or any agreement or arrangement
related to any Acquisition Proposal, or
(B) any other transaction that is designed to, or the consummation of which
would, impede, interfere with, prevent or materially delay the Offer or the
Merger.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter. The undersigned Shareholder may vote the Shares on
all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Irrevocable Proxy shall terminate, and be of no further force and
effect, automatically upon the Expiration Date.
SHAREHOLDER:
________________________________
By: ____________________________
Name:___________________________
Title:__________________________
*****IRREVOCABLE PROXY ****
