April 26, 2011 Saleen Holdings, Inc. c/o Silver Lake Partners 9 West 57th Street, 32nd Floor New York, NY 10019 and c/o Silver Lake Sumeru 2775 Sand Hill Road, Suite 100 Menlo Park, CA 94025 Re: Equity Financing Commitment Ladies and Gentlemen:
Exhibit (d)(3)
EXECUTION COPY
April 26, 2011
Saleen Holdings, Inc.
c/o Silver Lake Partners
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
c/o Silver Lake Partners
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
and
c/o Silver Lake Sumeru
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of the date hereof (as it may
be amended from time to time, the “Merger Agreement”), by and among Saleen Holdings, Inc.,
a Cayman Islands exempted company (“Parent”), Saleen Acquisition, Inc., a Cayman Islands
exempted company (“Merger Sub”), and SMART Modular Technologies (WWH), Inc., a Cayman
Islands exempted company (the “Company”), pursuant to which, upon the terms and subject to
the conditions set forth therein, Merger Sub will be merged with and into the Company (the
“Merger”). Capitalized terms used and not defined herein but defined in the Merger
Agreement shall have the meanings ascribed to them in the Merger Agreement. The parties listed on
Schedule A hereto are collectively referred to herein as the “Investors.” This
letter is being delivered by the Investors to Parent in connection with the execution of the Merger
Agreement.
1. Commitment. This letter confirms the several, and not joint, commitment of each of
the Investors, subject to the conditions set forth herein, to purchase (or cause an assignee
permitted by the terms of Section 3(a) to purchase) a portion of the equity of Parent as of the
Effective Time (the “Subject Equity Securities”) for an aggregate purchase price equal to
the dollar commitment set forth next to such Investor’s name on Schedule A hereto (the
“Commitment”) solely for the purpose of funding, and to the extent necessary to fund, the
aggregate Merger Consideration, the aggregate Equity Incentive Awards, the redemption of the Notes
and the repayment of the amount outstanding under the Loan and Security Agreement, in each case, in
connection with the Merger pursuant to and in accordance with the Merger Agreement, and to pay
related expenses, it being understood that none of the Investors (together with their permitted
assigns) shall under any circumstances be obligated to purchase any equity of Parent for a purchase
price in excess of its respective Commitment. The obligation of each of the Investors (or its
permitted assigns) to fund its respective Commitment (a) is subject to (i) the terms of this
letter, (ii) the satisfaction or waiver by Parent and Merger Sub of all of the
conditions precedent to Parent’s and Merger Sub’s obligation to effect the Closing set forth
in Section 6.1 and Section 6.2 of the Merger Agreement and (iii) the substantially concurrent
receipt of the proceeds of the Debt Financing in an amount that, together with the proceeds of the
Commitment hereunder and cash on hand at the Company, is sufficient to fund the aggregate Merger
Consideration, the aggregate Equity Incentive Awards which are to be paid in cash, the redemption
of the Notes and the repayment of the amount outstanding under the Loan and Security Agreement and
(b) subject to the foregoing clause (a), will occur contemporaneous with the Closing and the
simultaneous issuance to each of the Investors of the Subject Equity Securities. The amount to be
funded under this letter will be reduced in the manner designated by the Sponsors (as defined
below) in the event that Parent does not require all of the equity financing with respect to which
the Investors have made their Commitments in order to consummate the transactions contemplated by
the Merger Agreement.
2. Termination. Each Investor’s obligation to fund its Commitment will terminate
automatically and immediately upon the earliest to occur of (a) termination of the Merger
Agreement, (b) without limiting any of the Company’s rights against the Investors under their
respective Limited Guarantees, the commencement of any Action by the Company or any of its
Affiliates (other than an Affiliate of the Company that is also an Affiliate of an Investor;
provided that no employee of the Company shall be deemed to be an Affiliate of any Investor
for this purpose) against any of the Investors, Merger Sub or any Parent Related Party (as defined
below) relating to this letter, any of the Limited Guarantees, the Merger Agreement or any of the
transactions contemplated hereby or thereby (including in respect of any oral representations made
or alleged to be made in connection therewith) and (c) the payment of such Investor’s Obligations
(as defined in such Investor’s Limited Guarantee) pursuant to the Limited Guarantee executed and
delivered by such Investor or its Affiliates as long as such Investor or its Affiliates have not
breached a payment obligation under such Limited Guarantee. Upon termination of this letter, the
Investors shall not have any further obligations or liabilities hereunder.
3. Assignment; Amendments and Waivers; Entire Agreement.
(a) The rights and obligations under this letter may not be assigned by any party hereto
without the prior written consent of the other parties, and any attempted assignment shall be null
and void and of no force or effect. Notwithstanding the foregoing, each Investor may assign all or
a portion of its obligations to fund its Commitment to one or more of its affiliated investment
funds that is advised by the investment manager of such Investor or any Affiliate thereof, but no
such assignment shall relieve the assigning party of its obligations hereunder
(b) This letter may not be amended, and no provision hereof waived or modified, except by an
instrument signed by each of the parties hereto.
(c) This letter constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among or between any of the parties with respect to the
subject matter hereof and thereof.
4. No Third Party Beneficiaries. This letter shall be binding solely on, and inure
solely to the benefit of, the parties hereto and their respective successors and permitted
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assigns, and nothing set forth in this letter shall be construed to confer upon or give to any
Person (including the Company), other than the parties hereto and their respective successors and
permitted assigns, any benefits, rights or remedies under or by reason of, or any rights to enforce
or cause Parent to enforce, the Commitment or any provisions of this letter.
5. Limited Recourse; Enforcement.
(a) Notwithstanding anything that may be expressed or implied in this letter or any document
or instrument delivered in connection herewith, Parent, by its acceptance of the benefits of the
Commitments provided herein, covenants, agrees and acknowledges that no Person other than the
Investors and their respective permitted assigns hereunder shall have any obligation hereunder or
in connection with the transactions contemplated hereby and that, notwithstanding that the
Investors or any of their permitted assigns may be a partnership or limited liability company, it
has no rights of recovery against and no recourse hereunder or under any documents or instruments
delivered in connection herewith or in respect of any oral representations made or alleged to have
been made in connection herewith or therewith shall be had against any former, current and future
direct or indirect equityholders, controlling persons, stockholders, directors, officers,
employees, agents, Affiliates, members, managers, general or limited partners, attorneys or other
representatives of any party hereto or any of their successors or assigns or any former, current
and future direct or indirect equityholders, controlling persons, stockholders, directors,
officers, employees, agents, Affiliates, members, managers, general or limited partners, attorneys
or other representatives or successors or assignees of any of the foregoing (a “Parent Related
Party” and collectively, the “Parent Related Parties”), whether by or through attempted
piercing of the corporate (or limited liability company or limited partnership) veil, by or through
a claim (whether at law or equity or in tort, contract or otherwise) by or on behalf of any of the
Investors against any Parent Related Party, by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any applicable Law, or otherwise, it being agreed and
acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any Parent Related Party for any obligations of any of the Investors or any of their
successors or permitted assigns under this letter or any documents or instrument delivered in
connection herewith or in respect of any representations made or alleged to have been made in
connection herewith or therewith or for any claim (whether at law or equity or in tort, contract or
otherwise) based on, in respect of, or by reason of such obligations or their creation.
(b) This letter may only be enforced by Parent at the direction of the Sponsors in their sole
discretion. Parent shall have no right to enforce this letter unless directed to do so by the
Sponsors in their sole discretion. Parent’s creditors shall have no right to enforce this letter or
to cause Parent to enforce this letter. For purposes of this letter, “Sponsors” means the
consent or approval of both Silver Lake Partners III, L.P and Silver Lake Sumeru Fund, L.P.
(c) Concurrently with the execution and delivery of this letter, each Investor or an affiliate
of each Investor is executing and delivering to the Company a Limited Guarantee relating to certain
of Parent’s obligations under the Merger Agreement. The Company’s remedies against the Investors
under such Limited Guarantees shall and are intended to be the Company’s sole and exclusive direct
or indirect remedies available to the Company and its Affiliates against the Investors or any of
their Parent Related Parties for any Liability, loss,
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damage or recovery of any kind (including consequential, indirect or punitive damages, and
whether at law, in equity, in contract, in tort or otherwise) arising under or in connection with
any breach of the Merger Agreement (whether willfully, intentionally, unintentionally or otherwise)
or of the failure of the Merger to be consummated for any reason or otherwise in connection with
the transactions contemplated hereby and thereby or in respect of any representations made or
alleged to have been made in connection therewith (whether or not Parent’s or Merger Sub’s breach
is caused by the breach by any Investor of its obligations under this letter).
6. Confidentiality. This letter shall be treated as confidential and is being
provided to Parent solely in connection with the Merger. This letter may not be used, circulated,
quoted or otherwise referred to in any document, except with the written consent of the Sponsors;
provided that a copy of this letter may be provided to the Company if the Company agrees to
treat the letter as confidential; provided, further that any party hereto may disclose the
existence of this letter to the extent required by any applicable Law.
7. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This letter and all claims or causes of action (whether in tort, contract or otherwise)
that may be based upon, arise out of or relate to this letter or the negotiation, execution or
performance of this letter (including any claim or cause of action based upon, arising out of or
related to any representation or warranty made in or in connection with this letter) shall be
governed and construed in accordance with the laws of the State of New York. Each of the parties
hereto hereby irrevocably and unconditionally (i) submits, for itself and its property, to the
exclusive jurisdiction of any New York State court or Federal court of the United States of America
sitting in New York County, and any appellate court from any thereof, in any suit, action or
proceeding arising out of or relating to this letter, the negotiation, execution or performance of
this letter (including any claim or cause of action based upon, arising out of or related to any
representation or warranty made in or in connection with this letter) or the transactions
contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that
all claims in respect of any such suit, action or proceeding shall be heard and determined in such
New York State court or, to the extent permitted by law, in such Federal court, (ii) waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
letter, the negotiation, execution or performance of this letter (including any claim or cause of
action based upon, arising out of or related to any representation or warranty made in or in
connection with this letter) or the transactions contemplated hereby in any New York State or in
any such Federal court, (iii) waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any such court and (iv)
agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other matter provided by law.
Each of the parties hereto agrees that service of process, summons, notice or document by
registered mail addressed to you or us at the addresses set forth above shall be effective service
of process for any suit, action or proceeding brought in any such court.
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(B) EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF
THE PARTIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN
INDUCED TO ENTER INTO THIS LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7(B).
8. Headings. The descriptive headings in this letter are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or interpretation of
this letter.
9. Counterparts. This letter may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
[Remainder of this page intentionally left blank.]
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| Very truly yours, INVESTORS: SILVER LAKE PARTNERS III, L.P. |
||||
| By: | Silver Lake Technology Associates III, L.P., its general partner |
|||
| By: | SLTA III (GP), L.L.C., its general partner | |||
| By: | Silver Lake Group, L.L.C., its managing member | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Managing Member | |||
[Signature Page to Equity Commitment Letter]
| SILVER LAKE SUMERU FUND, L.P. |
||||
| By: | Silver Lake Technology Associates Sumeru, L.P., its general partner |
|||
| By: | SLTA Sumeru (GP), L.L.C., its general partner | |||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | Managing Director | |||
[Signature Page to Equity Commitment Letter]
Accepted and acknowledged:
PARENT:
|
SALEEN HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx Xxx | |||
| Title: | President | |||
[Signature Page to Equity Commitment Letter]
Schedule A
Commitments
| Investor | Dollar Commitment | |||
Silver Lake Partners III, L.P. |
$ | 254,000,000 | ||
Silver Lake Sumeru Fund, L.P. |
$ | 127,000,000 | ||
TOTAL |
$ | 381,000,000 | ||
