EXHIBIT 1.1
EXECUTION COPY
SEAGATE TECHNOLOGY INTERNATIONAL
$210,000,000
12 1/2% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
November 17, 2000
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED,
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Seagate Technology International, an exempted limited liability company
organized under the laws of the Cayman Islands (the "Issuer"), proposes to issue
and sell $210,000,000 aggregate principal amount of its 12 1/2% Senior
Subordinated Notes due 2007 (the "Securities"). The Securities will be issued
pursuant to an Indenture to be dated as of November 22, 2000 (the "Indenture"),
among the Issuer, New SAC, an exempted limited liability company organized under
the laws of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇ ▇▇▇"), each entity listed on Schedule I
hereto (New SAC and such entities, collectively, the "Note Guarantors") and The
Bank of New York, as trustee (the "Trustee") and will be guaranteed on an
unsecured senior subordinated basis by the Note Guarantors. On the date hereof,
this Agreement will be executed by Suez Acquisition Company (Cayman) Limited, an
exempted limited liability company organized under the laws of the Cayman
Islands ("Old SAC"), Chase Securities Inc. ("CSI"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
("Goldman") and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (together
with CSI and Goldman, the "Initial Purchasers"). On the Closing Date (as defined
in Section 3), (i) Old SAC will be merged (the "SAC Merger") with and into New
SAC, with New SAC as the surviving entity, (ii) the Issuer will become a party
to this Agreement, as issuer, and (iii) each of the Note Guarantors will become
a party to this agreement, as a Note Guarantor. Old SAC hereby confirms its
agreement with the Initial Purchasers concerning the purchase of the Securities.
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The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Issuer has
prepared a preliminary offering memorandum dated November 3, 2000 (the
"Preliminary Offering Memorandum") and will prepare an offering memorandum dated
the date hereof (the "Offering Memorandum") setting forth information concerning
the Issuer, the Note Guarantors and the Securities. Copies of the Preliminary
Offering Memorandum have been, and copies of the Offering Memorandum will be,
delivered by the Issuer to the Initial Purchasers pursuant to the terms of this
Agreement. Any references herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to include all amendments and supplements
thereto, unless otherwise noted. The Issuer and the Note Guarantors hereby
confirm that they have authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the
Securities by the Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Issuer and
the Note Guarantors will agree to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") registering an issue of senior
subordinated notes of the Issuer (the "Exchange Securities") which are identical
in all material respects to the Securities (except that the Exchange Securities
will not contain terms with respect to transfer restrictions) and (ii) under
certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act (the "Shelf Registration Statement").
The Securities are being offered in connection with Old SAC's
acquisition of substantially all of the operating assets of Seagate Technology,
Inc., a Delaware corporation ("Seagate"), consisting of its rigid disc drive,
tape drive, software and intelligent storage solutions businesses (including all
of the capital stock of the subsidiaries of Seagate (including the Issuer) that
operate such businesses), and all of Seagate's non-operating assets other than
the Designated Assets (as defined in the Stock Purchase Agreement referred to
below) pursuant to a Stock Purchase Agreement dated as of March 29, 2000, as
amended from time to time on or prior to the date hereof (the "Stock Purchase
Agreement"), by and among Old SAC, Seagate and Seagate Software Holdings, Inc.,
a Delaware corporation ("SSHI"). For the purposes of this Agreement, the
transactions contemplated by the Stock Purchase Agreement and the other
transactions described in the Offering Memorandum under the caption "The
Transactions", together with the SAC Merger, are referred to as the
"Transactions" and each entity that will be a subsidiary of New SAC upon the
consummation of the Transactions is referred to as a "SAC Subsidiary". Following
the consummation of the Transactions, the Issuer will be an indirect subsidiary
of New SAC.
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Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of Old SAC, the Issuer
and the Note Guarantors. (i) Old SAC represents and warrants to, and agrees
with, the several Initial Purchasers on and as of the date hereof and as of the
Closing Date and (ii) the Issuer and each of the Note Guarantors represent and
warrant to, and agree with, the several Initial Purchasers on and as of the
Closing Date that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date
the Offering Memorandum will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Issuer and the
Note Guarantors make no representation or warranty as to information
contained in or omitted from the Preliminary Offering Memorandum or the
Offering Memorandum in reliance upon and in conformity with written
information relating to the Initial Purchasers furnished to the Issuer
or the Note Guarantors by or on behalf of any Initial Purchaser
specifically for use therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contained or contains all of the
information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective
purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Initial Purchasers and
the offer, resale and delivery of the Securities by the Initial
Purchasers in the manner contemplated by this Agreement and the
Offering Memorandum, to register the Securities under the Securities
Act or to qualify the Indenture under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(d) Old SAC, New SAC and each of the SAC Subsidiaries have been duly
incorporated or formed, as the case may be, and are validly existing as
corporations or limited liability companies, as the case may be, in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all
corporate or limited liability company power and authority necessary to
own or hold their respective properties
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and to conduct the businesses in which they are engaged, except where
the failure to so qualify or have such power or authority would not,
singularly or in the aggregate, have a material adverse effect on the
financial condition results of operations or business of New SAC and
the SAC Subsidiaries taken as a whole after giving effect to the
consummation of the Transactions (a "Material Adverse Effect"). (e) As
of the Closing Date and after giving effect to the consummation of the
Transactions, New SAC will have an authorized capitalization as set
forth in the Offering Memorandum under the heading "Capitalization";
all of the outstanding shares of capital stock of New SAC will be duly
and validly authorized and issued and will be fully paid-up. On the
Closing Date, after giving effect to the consummation of the
Transactions, all of the outstanding share capital, capital stock or
limited liability company interests, as the case may be, of each
subsidiary of New SAC, including the Issuer, will be duly and validly
authorized and issued, will be fully paid or paid-up and
non-assessable, as applicable, and will be owned directly or indirectly
by New SAC, free and clear of any lien, charge, encumbrance, security
interest, restriction upon voting or transfer or any other claim of any
third party (other than liens, charges or encumbrances that, on the
Closing Date, will secure obligations under the Credit Agreement to be
entered into on the Closing Date among New SAC, the Issuer, Seagate
Technology (U.S.) Holdings, Inc. ("Seagate U.S."), the Lenders (as
defined therein) party thereto, The Chase Manhattan Bank, as
administrative agent, CSI, as book manager and lead arranger, ▇▇▇▇▇▇▇
Sachs Credit Partners L.P., as documentation agent, The Bank of Nova
Scotia, as documentation agent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation,
as documentation agent (the "Credit Agreement") and the related
guarantees).
(f) The statements set forth in the Offering Memorandum, under the
captions "Risk Factors", "The Transactions", "Capitalization",
"Management's Discussion and Analysis of Financial Condition and
Results of Operations--Liquidity and Capital Resources",
"Business--Legal Proceedings", "Management", "Certain Relationships and
Related Transactions" and "Description of Senior Credit Facilities",
insofar as such statements constitute a summary of certain provisions
of the documents or securities referred to therein, are accurate
summaries thereof in all material respects.
(g) The Issuer and each of the Note Guarantors each have full corporate
or limited liability company, as the case may be, power and authority
to execute and deliver this Agreement, the Indenture, the Registration
Rights Agreement and the Securities (in the case of the Issuer only)
(collectively, the "Note Documents") to which each is a party and to
perform their respective obligations hereunder and thereunder; and all
corporate or limited liability company action required to be taken for
the due and proper authorization, execution and delivery of each of the
Note Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken by the Issuer and each of the
Note Guarantors.
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(h) This Agreement has been duly authorized, executed and
delivered by Old SAC, the Issuer and each of the Note Guarantors and,
assuming due execution and delivery by the Initial Purchasers,
constitutes a valid and legally binding agreement of Old SAC, the
Issuer and each of the Note Guarantors enforceable against Old SAC, the
Issuer and each of the Note Guarantors in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law) and
except to the extent that the indemnification provisions hereof may be
unenforceable.
(i) The Registration Rights Agreement has been duly authorized by the
Issuer and each of the Note Guarantors and, when duly executed and
delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Issuer and
each of the Note Guarantors enforceable against the Issuer and each of
the Note Guarantors in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law).
(j) The Indenture has been duly authorized by the Issuer and each of
the Note Guarantors and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid
and legally binding agreement of the Issuer and each of the Note
Guarantors enforceable against the Issuer and each of the Note
Guarantors in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in
equity or at law). On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture Act
and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
(k) The Securities have been duly authorized by the Issuer and each of
the Note Guarantors and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein,
will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Issuer, as issuer, and
each of the Note Guarantors, as guarantors, entitled to the benefits of
the Indenture and enforceable against the Issuer, as issuer, and each
of the Note Guarantors, as guarantors, in accordance with their terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
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to or affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(l) The Credit Agreement has been duly authorized by New SAC, the
Issuer and Seagate U.S. and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of New SAC, the Issuer
and Seagate U.S. enforceable against New SAC, the Issuer and Seagate
U.S., respectively, in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law).
(m) To the knowledge of Old SAC and the Issuer and the Note Guarantors
(except with respect to Old SAC), the Stock Purchase Agreement has been
duly authorized, executed and delivered by Old SAC, Seagate and SSHI
and constitutes a valid and legally binding agreement of Old SAC,
Seagate and SSHI enforceable against Old SAC, Seagate and SSHI in
accordance with its terms, subject to (i) the effect of any applicable
laws of general application relating to bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors'
rights and the relief of debtors generally, and (ii) the effect of
rules of law and general principles of equity, including, without
limitation, rules of law and general principles of equity governing
specific performance, injunctive relief and other equitable remedies
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(n) To the knowledge of Old SAC and the Issuer and the Note Guarantors
(except with respect to Old SAC), the Indemnification Agreement dated
as of March 29, 2000, as amended from time to time on or prior to the
date hereof (the "Indemnification Agreement"), by and among VERITAS
Software Corporation, a Delaware corporation ("VERITAS"), Seagate, Old
SAC and each subsidiary of Old SAC (or any successor thereto) party
thereto has been duly authorized, executed and delivered by Seagate,
Old SAC and each subsidiary of Old SAC (or any successor thereto) party
thereto and constitutes a valid and legally binding agreement of
Seagate, Old SAC (or any successor thereto) and each subsidiary of Old
SAC (or any successor thereto) party thereto enforceable against
Seagate, Old SAC (or any successor thereto) and each subsidiary of Old
SAC (or any successor thereto) party thereto in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
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(o) Each of the several Rollover Agreements, each between Old SAC and
the individual listed on the schedules thereto (each a "Rollover
Agreement" and, collectively, the "Rollover Agreements"), the
Management Shareholders Agreement to be entered into on the Closing
Date among Old SAC and the parties identified on the signature pages
thereto as the "Management Shareholders" (the "Management Shareholders
Agreement") and the Shareholders Agreement to be entered into on the
Closing Date among Old SAC, Silver Lake Partners, L.P., TPG Partners
III, L.P., Integral Capital Partners, August Capital, Chase Capital
Partners and GS Capital Partners III, L.P., or their respective
affiliates (the "Shareholders Agreement") has been duly authorized by
each of the parties thereto and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of each party thereto
enforceable against each party thereto in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(p) Each of the Deferred Compensation Plans of Seagate Technology HDD
Holdings, Seagate Technology SAN Holdings and Seagate Removable Storage
Solutions Holdings (the "Deferred Compensation Plans") and the Suez
Acquisition Company (Cayman) Limited 2000 Restricted Share Plan (the
"Restricted Share Plan") have been duly authorized and adopted by
Seagate Technology HDD Holdings, Seagate Technology SAN Holdings,
Seagate Removable Storage Solutions Holdings and Old SAC, respectively.
The terms and conditions of the Deferred Compensation Plans (including,
without limitation, any terms relating to subordination) and the
Restricted Share Plan are valid and legally binding on each participant
in such plans, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law)
(q) Each of the Note Documents, the Stock Purchase Agreement, the
Indemnification Agreement, the Merger Agreement, the Credit Agreement,
the Rollover Agreements, the Deferred Compensation Plans, the
Restricted Share Plan, the Preferred Stock of SAC (the "Preferred
Stock"), the Management Shareholders Agreement and the Shareholders
Agreement (collectively, the "Transaction Documents") conforms in all
material respects to the description thereof contained in the Offering
Memorandum.
(r) The execution, delivery and performance by Old SAC, the Issuer and
each of the Note Guarantors of each of the Transaction Documents to
which each is a party, the issuance, authentication, sale and delivery
of the Securities and compliance by the Issuer and each of the Note
Guarantors with the terms thereof and the
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consummation of the transactions contemplated by the Transaction
Documents will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
(other than liens, charges or encumbrances that secure obligations
under the Credit Agreement and the related guarantees) upon any
property or assets of New SAC or any of the SAC Subsidiaries pursuant
to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which New SAC or any of the SAC Subsidiaries
is a party or by which New SAC or any of the SAC Subsidiaries is bound
or to which any of the property or assets of New SAC or any of the SAC
Subsidiaries is subject, except for such conflicts, breaches,
violations, defaults, liens, charges or encumbrances that could not
reasonably be expected to have a Material Adverse Effect; nor will such
actions result in any violation of the provisions of the charter or
by-laws (or any comparable constitutive documents) of New SAC or any of
the SAC Subsidiaries or any statute or any judgment, order, decree,
rule or regulation of any court or arbitrator or governmental agency or
body having jurisdiction over New SAC or any of the SAC Subsidiaries or
any of their properties or assets except for, in the case of a statute,
judgment, order, decree, rule or regulation, such violations which
could not reasonably be expected to have a Material Adverse Effect; and
no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency
or body under any such statute, judgment, order, decree, rule or
regulation is required for the execution, delivery and performance by
the Issuer and each of the Note Guarantors of each of the Transaction
Documents to which each is a party, the issuance, authentication, sale
and delivery of the Securities and compliance by the Issuer and each of
the Note Guarantors with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the
Closing Date, (ii) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement and (iii) the lack of which could not
reasonably be expected to result in a Material Adverse Effect.
(s) Ernst & Young LLP are or have been, as the case may be, independent
certified public accountants with respect to Old SAC and its
subsidiaries and Seagate and its subsidiaries within the meaning of
Rule 101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants ("AICPA") and its interpretations and
rulings thereunder. The historical financial statements (including the
related notes) contained in the Offering Memorandum (i) comply in all
material respects with the requirements applicable to a registration
statement on Form S-1 under the Securities Act (except that the
following are omitted as otherwise required by Regulation S-X of the
SEC: (A) the historical financial statements of Seagate Software
Information Management Group Holdings, Inc., a non-wholly owned
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subsidiary of Seagate, (B) notes to the historical financial statements
containing, for periods presented in the historical financial
statements, the historical financial statements of the guarantor and
non-guarantor subsidiaries of the Issuer, Seagate Software Information
Management Group Holdings, Inc. and certain other companies directly or
indirectly owned by Seagate, (C) historical financial statements for
XIOtech Corporation for the period from its acquisition in January 2000
through the present and (D) certain supporting schedules) and (ii) have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods covered thereby
and fairly present in all material respects the financial position of
the entities purported to be covered thereby at the respective dates
indicated and the results of their operations and their cash flows for
the respective periods indicated; and the financial information
contained in the Offering Memorandum under the headings "Offering
Memorandum Summary--Summary Historical and Pro Forma Financial
Information", "Capitalization", "Unaudited Pro Forma Consolidated
Condensed Financial of New Seagate", "Selected Historical Consolidated
Financial Information of Old Seagate", "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and
"Management--Compensation of Executive Officers" are derived from the
accounting records of Seagate and its subsidiaries and fairly present
in all material respects the information purported to be shown thereby
based on the assumptions stated therein, as applicable. The pro forma
financial information contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the pro forma
adjustments specified therein), includes all material adjustments to
the historical financial information required by Rule 11-02 of
Regulation S-X under the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act") to reflect the transactions
and the prior pro forma events described in the Offering Memorandum,
gives effect to assumptions made on a reasonable basis and fairly
presents the historical and proposed transactions contemplated by the
Offering Memorandum and the Transaction Documents. The other historical
financial information and data included in the Offering Memorandum are,
in all material respects, fairly presented.
(t) Except as disclosed in the Offering Memorandum, there are no legal
or governmental proceedings pending to which Old SAC or any of its
subsidiaries or Seagate or any of its subsidiaries is a party or of
which any property or assets of Old SAC or any of its subsidiaries or
Seagate or any of its subsidiaries is the subject which, (A) singularly
or in the aggregate, if determined adversely to Old SAC or any of its
subsidiaries or Seagate or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect or (B) question the validity
or enforceability of any of the Transaction Documents or any action
taken or to be taken pursuant thereto; and to the knowledge of the
Issuer and each of the Note Guarantors, no such proceedings are
threatened or contemplated by governmental authorities or
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threatened by others.
(u) To the knowledge of Old SAC, the Issuer and the Note Guarantors, no
action has been taken and no statute, rule, regulation or order has
been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Securities or suspends the sale of
the Securities in any jurisdiction; no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to Old SAC or any of its
subsidiaries or Seagate or any of its subsidiaries which would prevent
or suspend the issuance or sale of the Securities or the use of the
Preliminary Offering Memorandum or the Offering Memorandum in any
jurisdiction; except as disclosed in the Offering Memorandum, no
action, suit or proceeding is pending against or, to the knowledge of
the Issuer and each of the Note Guarantors, threatened against or
affecting Old SAC or any of its subsidiaries or Seagate or any of its
subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance of the
Securities in any material respect or in any manner draw into question
the validity or enforceability of any of the Transaction Documents or
any action taken or to be taken pursuant thereto; and the Issuer and
the Note Guarantors have complied with any requests by any securities
authority in any jurisdiction for additional information to be included
in the Preliminary Offering Memorandum and the Offering Memorandum.
(v) Neither New SAC nor any of the SAC Subsidiaries is, or after giving
effect to the Transactions, will be (i) in violation of its charter or
by-laws (or other similar constitutive documents), (ii) in default in
any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject
or (iii) in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject other than, in the case of clauses
(ii) and (iii), such defaults or violations that would not reasonably
be expected to have a Material Adverse Effect.
(w) Except as disclosed in the Offering Memorandum, after giving effect
to the Transactions, New SAC and each of the SAC Subsidiaries will
possess all material licenses, certificates, authorizations and permits
issued by, and will have made all declarations and filings with, the
appropriate federal, state or foreign regulatory agencies or bodies
which are necessary for the ownership of their respective properties or
the conduct of their respective businesses as described in the Offering
Memorandum, except where the failure to possess or make the same could
not,
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singularly or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and none of New SAC or any of the SAC
Subsidiaries will have received notification of any revocation or
modification of any such license, certificate, authorization or permit
or will have any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course,
except where the failure to possess the same would not reasonably be
expected to have a Material Adverse Effect.
(x) Each of Old SAC and each of its subsidiaries and each of Seagate
and each of its subsidiaries has timely filed all federal, state, local
and foreign income and franchise tax returns required to be filed
through the date hereof or have timely filed requests for extensions
and such extensions have been granted and have not expired and have
paid all taxes due thereon (or have made adequate provision for such
taxes on their respective balance sheets), except for such taxes of
which such failure to pay or so file could not reasonably be expected
to have a Material Adverse Effect, and, except as disclosed in the
Offering Memorandum, no tax deficiency has been determined adversely to
SAC or any of its subsidiaries or Seagate or any of its subsidiaries
which has had (nor does the Issuer or any of the Note Guarantors have
any knowledge of any tax deficiency which, if determined adversely to
SAC or any of its subsidiaries or Seagate or any of its subsidiaries,
could reasonably be expected to have) a Material Adverse Effect.
(y) After giving effect to the Transactions, none of New SAC or any of
the SAC Subsidiaries will be an "investment company" or a company
"controlled by" an investment company within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules and regulations of the Commission thereunder.
(z) On the Closing Date and after giving effect to the Transactions,
all of the material assets used in the rigid disc drive operations of
New SAC and the SAC Subsidiaries will be held by New SAC or
subsidiaries of New SAC other than Unrestricted Subsidiaries (as such
term is defined in the Offering Memorandum) or Designated Subsidiaries
(as such term is defined in the Offering Memorandum).
(aa) SAC and each of its subsidiaries and Seagate and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with their respective management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with their
respective management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
12
(bb) On the Closing Date and after giving effect to the Transactions,
New SAC and each of the SAC Subsidiaries will have insurance covering
their respective properties, operations, personnel and businesses,
which insurance will be in amounts and will insure against such losses
and risks as are customary for similar businesses or as required by
law. None of New SAC or any of the SAC Subsidiaries will have received
notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made
in order to continue such insurance.
(cc) There are no material contracts or other documents which would be
required to be described in a prospectus pursuant to the Securities Act
that are not described in the Offering Memorandum.
(dd) Except as disclosed in the Offering Memorandum, on the Closing
Date and after giving effect to the Transactions, (i) New SAC and each
of the SAC Subsidiaries will own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses;
and (ii) the conduct of their respective businesses will not conflict
in any material respect with, and New SAC and the SAC Subsidiaries will
not have received any notice of any claim of conflict with, any such
rights of others, except, in the case of clause (i) or (ii), where the
failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
(ee) On the Closing Date and after giving effect to the Transactions,
New SAC and each of the SAC Subsidiaries will have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real and personal property which are material to the
respective businesses of New SAC and the SAC Subsidiaries, in each case
free and clear of all liens, encumbrances, claims and defects and
imperfections of title except such as (i) do not materially interfere
with the use made and proposed to be made of such property by New SAC
and the SAC Subsidiaries or (ii) could not reasonably be expected to
have a Material Adverse Effect.
(ff) No labor disturbance by or dispute with the employees of New SAC
or any of the SAC Subsidiaries exists or, to the best knowledge of the
Issuer and the Note Guarantors, is contemplated or threatened, except
as could not reasonably be expected to result in a Material Adverse
Effect.
(gg) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and
13
published interpretations thereunder ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended from time to time (the
"Code")) or "accumulated funding deficiency" (as defined in Section 302
of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect
to any employee benefit plan of New SAC or any of the SAC Subsidiaries
which could reasonably be expected to have a Material Adverse Effect;
each such employee benefit plan is in compliance with applicable law,
including ERISA and the Code, except where any noncompliance could not
reasonably be expected to have a Material Adverse Effect; New SAC and
each of the SAC Subsidiaries have not incurred and do not expect to
incur liability under Title IV of ERISA with respect to the termination
of, or withdrawal from, any pension plan for which New SAC or any of
the SAC Subsidiaries would have any liability, except for such
liability which, if any were incurred, could not reasonably be expected
to have a Material Adverse Effect; and each such pension plan that is
intended to be qualified under Section 401(a) of the Code has either
obtained from the IRS a favorable determination, notification, advisory
and/or opinion letter, as applicable, as to its qualified status under
the Code, or still has a remaining period of time under applicable
treasury regulations or IRS pronouncements in which to apply for such
letter and to make any amendments necessary to obtain a favorable
determination as to its qualified status under the Code.
(hh) Except as disclosed in the Offering Memorandum, there has been no
storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other
wastes or other hazardous substances by, due to or caused by Old SAC or
any of its subsidiaries or Seagate or any of its subsidiaries (or, to
the best knowledge of the Issuer and the Note Guarantors, any other
entity (including any predecessor) for whose acts or omissions New SAC
or any of the SAC Subsidiaries is or could reasonably be expected to be
liable after giving effect to the Transactions) upon any of the
property now or previously owned or leased by Old SAC or any of its
subsidiaries or Seagate or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any
statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any
liability, except for any violation or liability that could not
reasonably be expected to have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and, except
as disclosed in the Offering Memorandum, there has been no disposal,
discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Issuer
or any of the Note Guarantors has knowledge, except for any such
disposal, discharge, emission or other release of any kind which could
not reasonably be expected to have, singularly or in the aggregate with
all such discharges and other
14
releases, a Material Adverse Effect.
(ii) Except as could not reasonably be expected to result in a Material
Adverse Effect, none of Old SAC or any of its subsidiaries or Seagate
or any of its subsidiaries nor, to the best knowledge of the Issuer and
each of the Note Guarantors, any director, officer, agent, employee or
other person associated with or acting on behalf of Old SAC or any of
its subsidiaries or Seagate or any of its subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity, (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices Act
of 1977 or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(jj) On and immediately after the Closing Date, the Issuer and each of
the Note Guarantors (after giving effect to the issuance of the
Securities and to the other Transactions related thereto as described
in the Offering Memorandum) will be Solvent. As used in this paragraph,
the term "Solvent" means, with respect to the Issuer or a Note
Guarantor and a particular date, that on such date (i) the present fair
market value (or present fair saleable value) of the assets of the
Issuer or such Note Guarantor, as applicable, is not less than the
total amount required to pay the probable liabilities of the Issuer or
such Note Guarantor, as applicable, on its total existing debts and
liabilities (including contingent liabilities) as they become absolute
and matured, (ii) the Issuer or such Note Guarantor, as applicable, is
able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they mature and
become due in the normal course of business, (iii) assuming the sale of
the Securities as contemplated by this Agreement and the Offering
Memorandum, the Issuer or such Note Guarantor, as applicable, is not
incurring debts or liabilities beyond its ability to pay as such debts
and liabilities mature and (iv) the Issuer or such Note Guarantor, as
applicable, is not engaged in any business or transaction, and is not
about to engage in any business or transaction, for which its property
would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which the
Issuer or such Note Guarantor, as applicable, is engaged. In computing
the amount of such contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount that, in the light
of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or
matured liability.
(kk) After giving effect to, and on the consummation of, the
Transactions, except as described in the Offering Memorandum, there
will be no outstanding subscriptions, rights, warrants, calls or
options to acquire, or instruments convertible into or exchangeable
for, or agreements or understandings with respect to the sale or
15
issuance of, any share capital, shares of capital stock of or other
equity or other ownership interest in New SAC or any of the SAC
Subsidiaries.
(ll) After giving effect to the Transactions, none of New SAC or any of
the SAC Subsidiaries will own any "margin securities" as that term is
defined in Regulation U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and none of the proceeds
of the sale of the Securities will be used, directly or indirectly, for
the purpose of purchasing or carrying any margin security, for the
purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Securities to be considered a
"purpose credit" within the meanings of Regulations T, U or X of the
Federal Reserve Board.
(mm) None of Old SAC or any of its subsidiaries or Seagate or any of
its subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the
Issuer, any Note Guarantor or the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the
offering and sale of the Securities.
(nn) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(oo) None of the Issuer, any of the Note Guarantors, any of their
affiliates or any person acting on its or their behalf has engaged or
will engage in any directed selling efforts (as such term is defined in
Regulation S under the Securities Act ("Regulation S")), and all such
persons have complied and will comply with the offering restrictions
requirement of Regulation S to the extent applicable.
(pp) Assuming the accuracy of the representations and warranties of the
Initial Purchasers in ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Issuer, any of the Note
Guarantors or any of their affiliates has, directly or through any
agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as such term is defined in the
Securities Act), which is or will be integrated with the sale of the
Securities in a manner that would require registration of the
Securities under the Securities Act.
(qq) None of the Issuer, any of the Note Guarantors or any of its
affiliates or any other person acting on its or their behalf has
engaged, in connection with the offering of the Securities, in any form
of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act.
(rr) Except with respect to securities of Seagate and Seagate Software
Information Group Holdings, Inc., which will be deregistered and
delisted in connection with the Transactions, there are no securities
of the Issuer or any of the Note Guarantors
16
registered under the Exchange Act, or listed on a national securities
exchange or quoted in a U.S. automated inter-dealer quotation system.
(ss) None of the Issuer or any of the Note Guarantors has taken or will
take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act in connection with the offering of the
Securities.
(tt) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in
the Preliminary Offering Memorandum or the Offering Memorandum has been
made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(uu) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (i) there has been no
material adverse change or, to the knowledge of Old SAC or the Issuer,
any development involving a prospective material adverse change in the
financial condition or in the earnings, business affairs or management
of New SAC or any of the SAC Subsidiaries, whether or not arising in
the ordinary course of business, (ii) none of New SAC or any of the SAC
Subsidiaries has incurred any material liability or obligation, direct
or contingent, other than in the ordinary course of business, (iii)
none of New SAC or any of the SAC Subsidiaries has entered into any
material transaction other than in the ordinary course of business and
(iv) there has not been any change in the share capital, capital stock
or other equity interests or long-term debt of New SAC or any of the
SAC Subsidiaries, or any dividend or distribution of any kind declared,
paid or made by New SAC or any of the SAC Subsidiaries on any class of
their respective share capital, capital stock or other equity
interests.
2. Purchase and Resale of the Securities. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, the Issuer agrees to issue and sell
to each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Issuer, the principal amount of Securities set forth opposite the name of such
Initial Purchaser on Schedule II hereto at a purchase price equal to 92.709% of
the principal amount thereof. The Issuer shall not be obligated to deliver any
of the Securities except upon payment for all of the Securities to be purchased
as provided herein.
(b) The Initial Purchasers have advised Old SAC and the Issuer
that they propose to offer the Securities for resale upon the terms and subject
to the conditions set forth herein and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents, warrants and agrees with Old
SAC, the Issuer and the Note Guarantors that (i) it is purchasing the Securities
pursuant to a private sale exempt from registration under the Securities Act,
(ii) it has not solicited offers for, or offered or sold, and will not solicit
offers for, or offer or sell, the Securities by means of any form of general
solicitation
17
or general advertising within the meaning of Rule 502(c) of Regulation D under
the Securities Act ("Regulation D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and (iii) it has
solicited and will solicit offers for the Securities only from, and has offered
or sold and will offer, sell or deliver the Securities, as part of their initial
offering, only (A) within the United States to persons whom it reasonably
believes to be qualified institutional buyers ("Qualified Institutional
Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), or if
any such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
it that each such account is a Qualified Institutional Buyer to whom notice has
been given that such sale or delivery is being made in reliance on Rule 144A and
in each case, in transactions in accordance with Rule 144A and (B) outside the
United States to persons other than U.S. persons in reliance on Regulation S
under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in
reliance on Regulation S, each Initial Purchaser, severally and not jointly,
represents, warrants and agrees with Old SAC, the Issuer and the Note Guarantors
that:
(i) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act;
(ii) such Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and
the Closing Date, only in accordance with Regulation S or Rule 144A
or any other available exemption from registration under the
Securities Act;
(iii) none of such Initial Purchaser or any of its
affiliates or any other person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect
to the Securities, and all such persons have complied and will comply
with the offering restriction requirements of Regulation S;
(iv) at or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, it will have sent to each
distributor, dealer or other person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of,
18
U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date of
original issuance of the Securities, except in accordance with
Regulation S or Rule 144A or any other available exemption
from registration under the Securities Act. Terms used above
have the meanings given to them by Regulation S";
(v) it has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of
the Securities, except with its affiliates or with the prior written
consent of the Issuer; and
(vi) it has complied and will comply in all material respects
with all applicable laws and regulations, in each jurisdiction, in
which it acquires, offers, sells or delivers Securities or has in its
possession or distributed the Preliminary Offering Memorandum or
Offering Memorandum at its own expense.
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly,
represents, warrants and agrees that (i) it has not offered or sold and prior to
the date six months after the Closing Date will not offer or sell any Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the Public Offers
of Securities Regulations 1995 with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom; and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom such document may otherwise lawfully be
issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees
that, prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such Initial
Purchaser from the Issuer pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Issuer shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale). In addition to the
foregoing, each Initial Purchaser acknowledges and agrees that the Issuer and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(d) and (e), counsel for the Issuer and for the Initial Purchasers,
respectively, may rely upon the
19
accuracy of the representations and warranties of the Initial Purchasers and
their compliance with their agreements contained in this Section 2, and each
Initial Purchaser hereby consents to such reliance.
(f) Old SAC, the Issuer and each of the Note Guarantors
acknowledges and agrees that the Initial Purchasers may sell Securities to any
affiliate of an Initial Purchaser and that any such affiliate may sell
Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of
and payment for the Securities shall be made at the offices of Cravath, Swaine &
▇▇▇▇▇, 825 Eighth Avenue, New York, New York, or at such other place as shall be
agreed upon by the Initial Purchasers and the Issuer, at 10:00 A.M., New York
City time, on November 22, 2000, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the Initial
Purchasers and the Issuer (such date and time of payment and delivery being
referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Issuer by wire or book-entry transfer of
same-day funds to such account or accounts as the Issuer shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as CSI on behalf of the Initial Purchasers shall have requested in
writing not less than two full business days prior to the Closing Date. Old SAC
and the Issuer agree to make one or more global certificates evidencing the
Securities available for inspection by CSI on behalf of the Initial Purchasers
in New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuer and the Note Guarantors.
Old SAC, the Issuer and each of the Note Guarantors agree with each of the
several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any
event during the period prior to the completion of the resale of the
Securities by the Initial Purchasers which makes any statement of a
material fact made in the Offering Memorandum untrue or which requires
the making of any additions to or changes in the Offering Memorandum
(as amended or supplemented from time to time) in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; to advise the Initial Purchasers promptly of
any order preventing or suspending the use of the Preliminary Offering
Memorandum or the Offering Memorandum, of any suspension of the
qualification of the Securities for offering or sale in any
jurisdiction and of the initiation or threatening of any proceeding for
20
any such purpose; and to use their reasonable best efforts to prevent
the issuance of any such order preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum or
suspending any such qualification and, if any such suspension is
issued, to use their reasonable best efforts to obtain the lifting
thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum (and
any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the
Offering Memorandum, at any time prior to the completion of the resale
of the Securities by the Initial Purchasers, to furnish a copy thereof
to each of the Initial Purchasers and counsel for the Initial
Purchasers and not to effect any such amendment or supplement to which
the Initial Purchasers shall reasonably object by notice to the Issuer
after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Initial Purchasers, counsel for Old SAC or counsel for
the Issuer, to amend or supplement the Offering Memorandum in order
that the Offering Memorandum will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing
at the time it is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may
be necessary to correct such untrue statement or omission or so that
the Offering Memorandum, as so amended or supplemented, will comply
with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request
of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless New SAC and the Issuer are then subject to and
in compliance with Section 13 or 15(d) of the Exchange Act (the
foregoing agreement being for the benefit of the holders from time to
time of the Securities and prospective purchasers of the Securities
designated by such holders);
(f) for a period of three years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports,
quarterly reports and current reports
21
filed by New SAC with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, and
such other documents, reports and information as shall be furnished by
New SAC or the Issuer to the Trustee or to the holders of the
Securities pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the
Initial Purchasers may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may designate and to continue
such qualifications in effect for so long as required for the resale of
the Securities; and to arrange for the determination of the eligibility
for investment of the Securities under the laws of such jurisdictions
as the Initial Purchasers may reasonably request; provided that,
following the Closing Date, New SAC and the SAC Subsidiaries shall not
be obligated to qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to file a general consent to service
of process or to subject themselves to taxation in respect of doing
business in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the
Securities to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL
Market and for the Securities to be eligible for clearance and
settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as such term is defined in the Securities Act) which
could be integrated with the sale of the Securities in a manner which
would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause its affiliates not to, and not to
authorize or knowingly permit any person acting on their behalf to,
solicit any offer to buy or offer to sell the Securities by means of
any form of general solicitation or general advertising within the
meaning of Regulation D or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; and not to
offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act to cease to be applicable to the offering
and sale of the Securities as contemplated by this Agreement and the
Offering Memorandum;
(k) for a period of 90 days from the date of the Offering
Memorandum and
22
except as contemplated by the Registration Rights Agreement, not to
offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or
announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by Old SAC, New SAC or any of
the SAC Subsidiaries (other than the Securities) without the prior
written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the
Initial Purchasers, not to, and not to permit any of its affiliates
(as defined in Rule 144 under the Securities Act) to, resell any of
the Securities that have been reacquired by them, except for
Securities purchased by the Issuer or any of its affiliates and
resold in a transaction registered under the Securities Act;
(m) not to, until the consummation of the Exchange Offer be
or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the Investment
Company Act, and to not be or become, or be or become owned by, a
closed-end investment company required to be registered, but not
registered thereunder;
(n) in connection with the offering of the Securities,
until CSI on behalf of the Initial Purchasers shall have notified the
Issuer of the completion of the resale of the Securities, not to, and
to cause its affiliated purchasers (as defined in Regulation M under
the Exchange Act) not to, either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of
its affiliated purchasers has a beneficial interest, any Securities,
or attempt to induce any person to purchase any Securities; and not
to, and to cause its affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Securities; provided,
however, that the Issuer and the Note Guarantors shall not be
responsible for any such activities by the Initial Purchasers.
(o) in connection with the offering of the Securities, to
make its officers, employees, independent accountants and legal
counsel reasonably available upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the
date hereof a copy of the independent accountants' report included in
the Offering Memorandum signed by the accountants rendering such
report;
(q) to do and perform all things required to be done and
performed by it under this Agreement that are within its control
prior to, on or after the Closing Date, and to use its reasonable
best efforts to satisfy all conditions precedent on its
23
part to the delivery of the Securities;
(r) prior to the Closing Date, not to issue any press
release or other communication directly or indirectly or hold any
press conference with respect to Old SAC, New SAC or any of the SAC
Subsidiaries, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and
consistent with the past practices of Seagate and of which the
Initial Purchasers are notified), without the prior written consent
of the Initial Purchasers, unless in the judgment of Old SAC and its
counsel or the Issuer and its counsel, and after notification to the
Initial Purchasers, such press release or communication is required
by law; and
(s) to apply the net proceeds from the sale of the
Securities as set forth in the Offering Memorandum under the heading
"Use of Proceeds".
5. Conditions of Initial Purchasers' Obligations. The
respective obligations of the several Initial Purchasers hereunder
are subject to the accuracy, on and as of the date hereof and the
Closing Date, of the representations and warranties of Old SAC, the
Issuer and each of the Note Guarantors contained herein, to the
accuracy of the statements of Old SAC, the Issuer and each of the
Note Guarantors and their respective officers made in any
certificates delivered pursuant hereto, to the performance by Old
SAC, the Issuer and each of the Note Guarantors of their respective
obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Offering Memorandum (and any amendments or
supplements thereto) shall have been printed and copies distributed
to the Initial Purchasers as promptly as practicable on or following
the date of this Agreement or at such other date and time as to which
the Initial Purchasers may agree; and no stop order suspending the
sale of the Securities in any jurisdiction shall have been issued and
no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(b) None of the Initial Purchasers shall have discovered
and disclosed to the Issuer on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains
an untrue statement of a fact which, in the opinion of counsel for
the Initial Purchasers, is material or omits to state any fact which,
in the opinion of such counsel, is material and is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of each of the
Transaction Documents and the Offering Memorandum, and all other
legal matters relating to the Transaction
24
Documents and the transactions contemplated thereby, shall be
reasonably satisfactory in all material respects to the Initial
Purchasers, and the Issuer and the Note Guarantors shall have furnished
to the Initial Purchasers all documents and information that they or
their counsel may reasonably request to enable them to pass upon such
matters.
(d) Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel, and
local counsel to Old SAC, New SAC and the SAC Subsidiaries in each of
California and Minnesota, Canada, the Cayman Islands, England and
Wales, Japan, Mexico, Northern Ireland, Singapore, Scotland and
Thailand shall have furnished to the Initial Purchasers their written
opinions, as counsel to Old SAC, New SAC and the SAC Subsidiaries,
addressed to the Initial Purchasers and dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchasers.
(e) The Initial Purchasers shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, and local counsel
for the Initial Purchasers in Canada, the Cayman Islands, England and
Wales, Northern Ireland, Singapore, Scotland and Thailand such opinion
or opinions, dated the Closing Date, with respect to such matters as
the Initial Purchasers may reasonably require, and the Issuer shall
have furnished to such counsel such documents and information as they
request for the purpose of enabling them to pass upon such matters.
(f) The Issuer shall have furnished to the Initial Purchasers
a letter (the "Initial Letter") of Ernst & Young LLP, addressed to the
Initial Purchasers and dated the date hereof, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially to the
effect set forth in Annex B hereto.
(g) The Issuer shall have furnished to the Initial Purchasers
a letter (the "Bring-Down Letter") of Ernst & Young LLP, addressed to
the Initial Purchasers and dated the Closing Date (i) confirming that
they are independent public accountants with respect to Seagate and its
subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings thereunder,
(ii) stating, as of the date of the Bring-Down Letter (or, with respect
to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Offering
Memorandum, as of a date not more than three business days prior to the
date of the Bring-Down Letter), that the conclusions and findings of
such accountants with respect to the financial information and other
matters covered by the Initial Letter are accurate and (iii) confirming
in all material respects the conclusions and findings set forth in the
Initial Letter.
(h) The Issuer and New SAC, on behalf of themselves and the
other Note Guarantors, shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of their respective chief
executive officers and their respective chief
25
financial officers stating that (A) such officers have carefully
examined the Offering Memorandum, (B) in their opinion, the Offering
Memorandum, as of its date, did not include any untrue statement of a
material fact and did not omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and since the date of the
Offering Memorandum, no event has occurred which should have been set
forth in a supplement or amendment to the Offering Memorandum so that
the Offering Memorandum (as so amended or supplemented) would not
include any untrue statement of a material fact and would not omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, (C) to their knowledge after due inquiry, as of the
Closing Date, the representations and warranties of the Issuer and the
Note Guarantors, in this Agreement are true and correct in all material
respects, the Issuer and the Note Guarantors, have complied in all
material respects with all agreements and satisfied all conditions on
their part to be performed or satisfied hereunder on or prior to the
Closing Date, and (D) to their knowledge after due inquiry, subsequent
to the date of the most recent financial statements contained in the
Offering Memorandum, there has been no material adverse change in the
financial position or results of operation of Old SAC, New SAC or any
of the SAC Subsidiaries, or any change, or any development involving a
prospective change, in or affecting the financial condition, results of
operations or business of New SAC and the SAC Subsidiaries taken as a
whole after giving effect to the consummation of the Transactions.
(i) The Initial Purchasers shall have received a counterpart
of the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of the Issuer and each Note
Guarantor.
(j) The Indenture shall have been duly executed and delivered
by the Issuer, the Note Guarantors and the Trustee, and the Securities
shall have been duly executed and delivered by the Issuer and each Note
Guarantor and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for
trading in the PORTAL Market.
(l) If any event shall have occurred that requires the Issuer
under Section 4(d) to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been
prepared, the Initial Purchasers shall have been given a reasonable
opportunity to comment thereon, and copies thereof shall have been
delivered to the Initial Purchasers reasonably in advance of the
Closing Date.
26
(m) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act
or the Exchange Act by the Commission or any amendment or proposed
amendment thereof by the Commission which in the reasonable judgment of
the Initial Purchasers would materially impair the ability of the
Initial Purchasers to purchase, hold or effect resales of the
Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the
Offering Memorandum (exclusive of any amendment or supplement thereto),
there shall not have been any change in the capital stock or long-term
debt or any change, or any development involving a prospective change,
in or affecting the financial condition, results of operations or
business or prospects of SAC and the SAC Subsidiaries taken as a whole
after giving effect to the consummation of the Transactions, the effect
of which, in any such case described above, is, in the reasonable
judgment of the Initial Purchasers, so material and adverse as to make
it impracticable or inadvisable to proceed with the sale or delivery of
the Securities on the terms and in the manner contemplated by this
Agreement and the Offering Memorandum (exclusive of any amendment or
supplement thereto).
(o) No action shall have been taken and no statute, rule,
regulation, injunction, restraining order or order of any other nature
shall have been enacted, adopted or issued by any federal or state
court of competent jurisdiction or any governmental agency or body
which would, as of the Closing Date, prevent the issuance or sale of
the Securities.
(p) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Securities or any of New SAC's or the Issuer's other debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes
of Rule 436(g)(2) of the rules and regulations of the Commission under
the Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Securities or any of New SAC's or the Issuer's other debt
securities or preferred stock.
(q) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on any such
exchange or market by the Commission, by any such
27
exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in any securities of the Issuer on any
exchange or in the over-the-counter market shall have been suspended or
(ii) any moratorium on commercial banking activities shall have been
declared by federal or New York state authorities or (iii) an outbreak
or escalation of hostilities involving the United States or a
declaration by the United States of a national emergency or war or (iv)
a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) the effect of which, in the
case of this clause (iv), is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the Securities
on the terms and in the manner contemplated by this Agreement and in
the Offering Memorandum (exclusive of any amendment or supplement
thereto).
(r) Each of the Issuer and the Note Guarantors shall have
become parties to this Agreement pursuant to the execution and delivery
of a Joinder to the Purchase Agreement in the form attached hereto as
Annex C.
(s) All conditions to the consummation of the Transactions,
other than the offering of the Securities, shall have been satisfied.
The Transactions, including the initial funding under the Credit
Agreement, the SAC Merger, the mailing of the notice of redemption of
the Existing Senior Notes and the transactions contemplated by the
Stock Purchase Agreement and the Merger Agreement described under "The
Transactions" in the Offering Memorandum shall be consummated
substantially concurrently with the sale of the Securities hereunder.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory in all material respects to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers, in their absolute
discretion, by notice given to and received by the Issuer prior to delivery of
and payment for the Securities if, prior to that time, any of the events
described in Section 5(m), (n), (o), (p) or (q) shall have occurred and be
continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date,
any Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Initial Purchaser agreed but
failed to purchase (the "Unpurchased Securities") by other persons satisfactory
to the Issuer and the non-defaulting Initial Purchasers, but if no such
arrangements are made within 48 hours after such default then
28
(i) if the principal amount of the Unpurchased Securities does not exceed 10% of
the principal amount of Securities to be purchased on such date, the
non-defaulting Initial Purchasers shall be obligated to purchase the full amount
thereof, or (ii) if the principal amount of the Unpurchased Securities exceeds
10% of the Securities to be purchased on such date, the Issuer shall be entitled
to a further period of 48 hours within which to procure another party or parties
reasonably satisfactory to the non-defaulting Initial Purchasers to purchase
such Unpurchased Securities upon such terms herein set forth. If, however, the
Issuer shall not have completed such arrangements within 96 hours after such
default and the principal amount of the Unpurchased Securities exceeds 10% of
the principal amount of Securities to be purchased on such date, then this
Agreement shall terminate without liability on the part of the non-defaulting
Initial Purchasers, Old SAC, the Issuer or the Note Guarantors, except that the
Issuer and the Note Guarantors will continue to be liable for the payment of
expenses to the extent set forth in Sections 8 and 12 and except that the
provisions of Sections 9 and 10 shall not terminate and shall remain in effect.
As used in this Agreement, the term "Initial Purchasers" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule 1 hereto that, pursuant to this Section 7, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to the Issuer or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, either the non-defaulting Initial Purchasers or the Issuer
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Issuer or counsel for
the Initial Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement, and the Issuer agrees to promptly prepare any
amendment or supplement to the Offering Memorandum that effects any such
changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6 or 7, (b) the Issuer
shall fail to tender the Securities for delivery to the Initial Purchasers for
any reason permitted under this Agreement or (c) the Initial Purchasers shall
decline to purchase the Securities for any reason permitted under this
Agreement, the Issuer and the Note Guarantors shall reimburse the Initial
Purchasers (other than as provided with respect to a defaulting Initial
Purchaser in the last sentence of this paragraph) for such out-of-pocket
expenses (including reasonable fees and disbursements of counsel) as shall have
been reasonably incurred by the Initial Purchasers in connection with this
Agreement and the proposed purchase and resale of the Securities. If this
Agreement is terminated pursuant to Section 7 by reason of the default of one or
more of the Initial Purchasers, the Issuer and the Note Guarantors shall not be
obligated to reimburse any defaulting Initial Purchaser on account of such
expenses.
9. Indemnification. (a) The Issuer and each of the Note
Guarantors shall
29
jointly and severally indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or in any information provided by the Issuer pursuant to
Section 4(e) or (ii) the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and shall
reimburse each Initial Purchaser promptly upon demand for any legal or other
expenses reasonably incurred by that Initial Purchaser in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Issuer and
the Note Guarantors shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Initial Purchasers' Information; and provided, further, that with respect to any
such untrue statement in or omission from the Preliminary Offering Memorandum,
the indemnity agreement contained in this Section 9(a) shall not inure to the
benefit of any such Initial Purchaser to the extent that the sale to the person
asserting any such loss, claim, damage, liability or action was an initial
resale by such Initial Purchaser and any such loss, claim, damage, liability or
action of or with respect to such Initial Purchaser results from the fact that
both (A) to the extent required by applicable law, a copy of the Offering
Memorandum was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (B) the untrue
statement in or omission from the Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Issuer or a Note
Guarantor with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Issuer, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Issuer within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(b) and
Section 10 as the Issuer), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Issuer may become
30
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Initial Purchasers' Information, and
shall reimburse the Issuer for any legal or other expenses reasonably incurred
by the Issuer in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of outside counsel to the indemnified party) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of outside
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on
31
behalf of the indemnified party) or (4) the indemnifying party has not in fact
employed counsel reasonably satisfactory to the indemnified party to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or reasonably could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
The obligations of the Issuer, the Note Guarantors and the
Initial Purchasers in this Section 9 and in Section 10 are in addition to any
other liability that the Issuer, the Note Guarantors or the Initial Purchasers,
as the case may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
10. Contribution. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuer and the Note Guarantors on
the one hand and the Initial Purchasers on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Issuer and the Note Guarantors on the one hand and the Initial
Purchasers on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Issuer
32
and the Note Guarantors on the one hand and the Initial Purchasers on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the Issuer and
the Note Guarantors, on the one hand, and the total discounts and commissions
received by the Initial Purchasers with respect to the Securities purchased
under this Agreement, on the other, bear to the total gross proceeds from the
sale of the Securities under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Issuer or information supplied by the Issuer and
the Note Guarantors on the one hand or to any Initial Purchasers' Information on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Issuer, the Note Guarantors and the Initial Purchasers agree that
it would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 10 shall be deemed to include, for purposes of this
Section 10, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending or preparing to defend any
such action or claim. Notwithstanding the provisions of this Section 10, no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by such Initial
Purchaser with respect to the Securities purchased by it under this Agreement
exceeds the amount of any damages which such Initial Purchaser has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
as provided in this Section 10 are several in proportion to their respective
purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, Old
SAC, the Issuer, the Note Guarantors and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except as provided in Sections 9 and 10 with respect to
affiliates, officers, directors, employees, representatives, agents and
controlling persons of the Issuer, the Note Guarantors and the Initial
Purchasers and in Section 4(e) with respect to holders and prospective
purchasers of the Securities. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
11, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
33
12. Expenses. The Issuer and the Note Guarantors agree with
the Initial Purchasers to pay (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities to the Initial
Purchasers and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and distribution of the Preliminary Offering
Memorandum, the Offering Memorandum and any amendments or supplements thereto;
(c) the costs of reproducing and distributing each of the Transaction Documents;
(d) the costs incident to the preparation, printing and delivery of the
certificates evidencing the Securities, including stamp duties and transfer
taxes, if any, payable upon issuance of the Securities to the Initial
Purchasers; (e) the fees and expenses of the Issuer's counsel and independent
accountants; (f) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(g) and of
preparing, printing and distributing Blue Sky Memoranda (including reasonable
related fees and expenses of counsel for the Initial Purchasers); (g) any fees
charged by rating agencies for rating the Securities; (h) the fees and expenses
of the Trustee and any paying agent (including related reasonable fees and
expenses of any counsel to such parties); (i) all expenses and application fees
incurred in connection with the application for the inclusion of the Securities
on the PORTAL Market and any expenses incurred in connection with the approval
of the Securities for book-entry transfer by DTC; and (j) all other costs and
expenses incident to the performance of the obligations of the Issuer or a Note
Guarantor under this Agreement which are not otherwise specifically provided for
in this Section 12; provided, however, that except as provided in this Section
12 and Section 8, the Initial Purchasers shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Issuer, the Note
Guarantors and the Initial Purchasers contained in this Agreement or made by or
on behalf of the Issuer, the Note Guarantors or the Initial Purchasers pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination or cancelation of this Agreement or any
investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
14. Notices, etc.. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to Chase Securities Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department
(telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇); or
(b) if to Old SAC, the Issuer or the Note Guarantors, shall be
delivered or sent by mail or telecopy transmission to the address of
the Issuer set forth in the Offering Memorandum, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Senior Vice President, General Counsel and Secretary
(Telephone: (▇▇▇) ▇▇▇-▇▇▇▇; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) and
34
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Corporate Finance and Treasurer
(Telephone: (▇▇▇) ▇▇▇-▇▇▇▇; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇); with a copy to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Rise ▇▇▇▇▇▇ (Telephone (212-455- 2000); Facsimile
(▇▇▇) ▇▇▇-▇▇▇▇);
provided that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Issuer shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Initial Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
16. Initial Purchasers' Information. The parties hereto
acknowledge and agree that, for all purposes of this Agreement, the Initial
Purchasers' Information consists solely of the following information in the
Preliminary Offering Memorandum and the Offering Memorandum: (i) bullet point on
the right hand side of the front cover page concerning the terms of the offering
by the Initial Purchasers and (ii) the statements concerning the Initial
Purchasers contained in the third, ninth, tenth, eleventh and twelfth paragraphs
under the heading "Plan of Distribution".
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein 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.
21. Acknowledgment by Initial Purchasers. Each of the Initial
Purchasers
35
hereby acknowledges that (a) Old SAC is making representations and warranties to
and certain agreements with the Initial Purchasers solely on the date hereof and
(b) on the Closing Date, after giving effect to the consummation of the
transactions contemplated by this Agreement, Old SAC shall cease to exist as an
exempted limited liability company organized under the laws of the Cayman
Islands and that the Issuer and the Note Guarantors shall join this Agreement by
the execution and delivery of an agreement in the form attached hereto as Annex
C.
22. Waiver of Immunities. To the extent that Old SAC, the
Issuer or any of the Note Guarantors or any of their respective properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from setoff or
counterclaim, from the competent jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or from other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any competent jurisdiction in which proceedings may at any time be
commenced, with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Agreement and the
transactions contemplated hereby, Old SAC, the Issuer and each Note Guarantor
hereby irrevocably and unconditionally waives and agrees not to plead or claim,
any such immunity and consent to such relief and enforcement.
23. Consent to Jurisdiction; Appointment of Agent for Service
of Process; Judgment Currency. (a) Old SAC, the Issuer and each of the Note
Guarantors agrees that any suit, action or proceeding against Old SAC, the
Issuer or any Note Guarantor arising out of or relating to this Agreement may be
instituted in any state or U.S. Federal court in the Borough of Manhattan, The
City of New York, New York, and any appellate court from any thereof, and each
of them irrevocably submits to the non-exclusive jurisdiction of such courts in
any suit, action or proceeding. Old SAC, the Issuer and each of the Note
Guarantors irrevocably waives, to the fullest extent permitted by law, any
objection to any suit, action, or proceeding that may be brought in connection
with this Agreement, including such actions, suits or proceedings relating to
securities laws of the United States of America or any state thereof, in such
courts whether on the grounds of venue, residence or domicile or on the ground
that any such suit, action or proceeding has been brought in an inconvenient
forum. Old SAC, the Issuer and each Note Guarantor agrees that final judgment in
any such suit, action or proceeding brought in such court shall be conclusive
and binding upon Old SAC, the Issuer or any Note Guarantor, as the case may be,
and may be enforced in any court to the jurisdiction of which Old SAC, the
Issuer or any Note Guarantor, as the case may be, is subject by a suit upon such
judgment; provided that service of process is affected upon Old SAC, the Issuer
or any Note Guarantor, as the case may be, in the manner provided by this
Section.
36
(b) Old SAC, the Issuer and each Note Guarantor organized
under the laws of any jurisdiction other than the United Sates, any state
thereof or the District of Columbia irrevocably appoints CT Corporation System
Inc., with offices on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as its authorized agent (the "Authorized Agent"), upon whom process may
be served in any suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated herein which may be instituted in any
state or U.S. Federal court in the Borough of Manhattan, The City of New York,
New York, and expressly accepts the non-exclusive jurisdiction of any such court
in respect of any such suit, action or proceeding. Old SAC, the Issuer and each
Note Guarantor hereby represents and warrants that the Authorized Agent has
accepted such appointment and has agreed to act as said agent for service of
process, and Old SAC, the Issuer and the Note Guarantors agree to take any and
all action, including the filing of any and all documents that may be necessary
to continue such respective appointment in full force and effect for a period of
seven years from the date of this Agreement. Service of process upon the
Authorized Agent shall be deemed, in every respect, effective service of process
upon Old SAC, the Issuer and the Note Guarantors. Notwithstanding the foregoing,
any action involving Old SAC, the Issuer or any Note Guarantor arising out of or
relating to this Agreement may be instituted in any court of competent
jurisdiction in any other jurisdiction.
(c) Any action, suit or proceeding brought by Old SAC, the
Issuer or any Note Guarantor against any Initial Purchaser arising out of or
based upon this Agreement and the transactions contemplated herein shall be
brought solely in a U.S. Federal or state court in the Borough of Manhattan, The
City of New York, New York, and neither Old SAC, the Issuer or any Note
Guarantor shall initiate or seek to initiate, in the Cayman Islands or any other
jurisdiction other than in such New York courts, any action, suit or proceeding
against any Initial Purchaser arising out of or based upon this Agreement and
the transactions contemplated herein. The foregoing shall apply, without
limitation, to any action seeking to obtain any injunction or declaratory
judgment against the enforcement of, or a declaratory judgment concerning, any
claim by any Initial Purchaser in respect of this Agreement and any transaction
contemplated herein, and any action challenging the enforceability of or seeking
to invalidate in any respect the submission by Old SAC, the Issuer or any Note
Guarantor hereunder to the jurisdiction of such New York courts or the
designation, pursuant to this section 23, of the laws of the State of New York
as the law applicable to this Agreement.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange shall be the rate at which in
accordance with normal banking procedures the Initial Purchasers, Old SAC, the
Issuer, or any Note Guarantor could purchase United States dollars with the
other currency in New York City on the business day preceding that on which
final judgment is given. The obligation of any Initial Purchaser, Old SAC, the
37
Issuer or any Note Guarantor in respect of the sum due shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged
until the first business day following receipt by such Initial Purchaser, Old
SAC, the Issuer or such Note Guarantor of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) such Initial purchaser,
Old SAC, the Issuer or such Note Guarantor may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to any
Initial Purchaser, Old SAC, the Issuer or any Note Guarantor hereunder, such
Initial Purchaser, Old SAC, the Issuer or such Note Guarantor agrees, as
applicable, as a separate obligation and notwithstanding any such judgment, to
indemnify such Initial Purchaser, Old SAC, the Issuer or such Note Guarantor
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Initial Purchaser, Old SAC, the Issuer or such
Note Guarantor, such Initial Purchaser, Old SAC, the Issuer or such Note
Guarantor agrees to pay to such Initial Purchaser, Old SAC, the Issuer or such
Note Guarantor, as the case may be, an amount equal to the excess of the United
States dollars so purchased over the sum originally due to such Initial
Purchaser, Old SAC, the Issuer or such Note Guarantor.
(e) The provisions of this Section 23 shall survive any
termination or cancelation of this Agreement.
38
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between Old SAC and, upon the
execution of a Joinder to the Purchase Agreement in the form of Annex C, the
Issuer, the Note Guarantors and the several Initial Purchasers in accordance
with its terms.
Very truly yours,
SUEZ ACQUISITION COMPANY (CAYMAN)
LIMITED,
By /s/ ▇▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title:
Accepted:
CHASE SECURITIES INC.,
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.,
By /s/ ▇▇▇▇▇▇▇, Sachs & Co.
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Registration
Department
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Authorized Signatory
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address for notices pursuant to Section 9(c):
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
40
SCHEDULE I
Note Guarantors
Name Jurisdiction of
---- Organization
--------------
New SAC Cayman Islands
Seagate Technology Holdings Cayman Islands
Seagate Technology HDD Holdings Cayman Islands
Seagate Technology China Holding Company Cayman Islands
Seagate Technology Asia Holdings Cayman Islands
Seagate Technology (Ireland) Cayman Islands/
Located in Northern
Ireland
Seagate Technology Media (Ireland) Cayman Islands/
Located in Northern
Ireland
Seagate Technology Far East Holdings Cayman Islands
Seagate Technology (Philippines) Cayman Islands
Seagate Technology (SAN) Holdings Cayman Islands
Seagate Removable Storage Solutions Holdings Cayman Islands
Seagate Removable Storage Solutions International Cayman Islands
Seagate Software (Cayman) Holdings Cayman Islands
Seagate Technology (US) Holdings, Inc. Delaware
Seagate Technology LLC Delaware
Seagate US LLC Delaware
Redwood Acquisition Corporation Delaware
Seagate Removable Storage Solutions (US) Holdings, Inc Delaware
Seagate Removable Storage Solutions LLC Delaware
41
Seagate RSS LLC Delaware
Seagate Software Information Management Group Delaware
Holdings, Inc.
Quinta Corporation California
XIOtech Corporation Minnesota
Seagate Technology (Thailand) Limited Thailand
Seagate Technology-▇▇▇▇▇▇▇, S. de ▇.▇. de C.V. Mexico
Nippon Seagate Inc. Japan
Nippon Seagate Software, Inc. Japan
Seagate Singapore Distribution Pte Ltd Singapore
Seagate Software Information Pte Ltd Singapore
Seagate Distribution (UK) Limited Scotland
Seagate Technology (Marlow) Limited England & Wales
Seagate Software Information Management Group Limited England & Wales
XIOtech (Canada) Limited Canada
Seagate Software(Canada), Inc. Canada
42
SCHEDULE II
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Securities Inc. $84,000,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $84,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated $42,000,000
-----------
Total $210,000,000
43
ANNEX A
[Form of Exchange and Registration Rights Agreement]
44
ANNEX B
[Form of Initial Letter]
45
ANNEX C
SEAGATE TECHNOLOGY INTERNATIONAL
$210,000,000
12 1/2% Senior Subordinated Notes due 2007
[Form Of]
JOINDER TO THE PURCHASE AGREEMENT
---------------------------------
November 22, 2000
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Purchase Agreement (the "Purchase
Agreement") dated November 17, 2000, among Suez Acquisition Company (Cayman)
Limited, an exempted limited liability company organized under the laws of the
Cayman Islands, Chase Securities Inc. ("CSI"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman")
and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (together with CSI and
Goldman, the "Initial Purchasers") concerning the purchase of the Securities (as
defined in the Purchase Agreement) from the Issuer by the several Initial
Purchasers. Capitalized terms used herein but not defined herein shall have the
meanings assigned to such terms in the Purchase Agreement. This is the agreement
referred to in Section 5(r) of the Purchase Agreement.
Seagate Technology International, an exempted limited
liability company organized under the laws of the Cayman Islands (the "Issuer")
and each of the Note Guarantors listed on Schedule I hereto agree that this
letter agreement is being executed and delivered in connection with the issue
and sale of the Securities pursuant to the Purchase Agreement and to induce the
Initial Purchasers to purchase the Securities thereunder. This letter agreement
is being executed on the Closing Date, concurrently with the consummation of the
sale of Securities pursuant to the Purchase Agreement and the consummation of
the other Transactions.
1. Joinder. Each of the parties hereto hereby agrees to
be become bound by
46
the terms, conditions and other provisions of the Purchase Agreement (in the
case of the Issuer, as issuer and in the case of each Note Guarantor, as a Note
Guarantor), with all attendant rights, duties and obligations stated therein,
with the same force and effect as if originally named therein as a party and as
if such party executed the Purchase Agreement on the date thereof.
2. Representations, Warranties and Agreements of the Issuer
and the Note Guarantors. The Issuer and each of the Note Guarantors represent
and warrant to, and agree with, the several Initial Purchasers on and as of the
date hereof that:
(a) each of Issuer and the Note Guarantors has the corporate or
limited liability power, as the case may be, to execute and deliver
this letter agreement and all corporate or limited liability action, as
the case may be, required to be taken by each of them for the due and
proper authorization, execution, delivery and performance of this
letter agreement and the consummation of the transactions contemplated
hereby has been duly and validly taken; this letter agreement has been
duly authorized, executed and delivered by the Issuer and each of the
Note Guarantors and constitutes a valid and legally binding agreement
of the Issuer and each of the Note Guarantors enforceable against the
Issuer and each of the Note Guarantors in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(b) the representations, warranties and agreements set forth in
Section 1 of the Purchase Agreement are true and correct on and as of
the date hereof.
3. GOVERNING LAW. THIS LETTER AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
4. Counterparts. This Letter Agreement may be executed in
one or more counterparts (which may include counterparts delivered by
telecopier) and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
5. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and
signed by the parties hereto.
47
6. Headings. The headings herein 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.
48
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to us a counterpart hereof,
whereupon this instrument will become a binding agreement between Old
SAC, and upon the execution of a Joinder to Purchase Agreement in the
form of Annex C, the Issuer, the Note Guarantors and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
SEAGATE TECHNOLOGY INTERNATIONAL,
by
Name:
Title:
NEW SAC,
by
Name:
Title:
SEAGATE TECHNOLOGY HOLDINGS,
by
Name:
Title:
SEAGATE TECHNOLOGY HDD HOLDINGS,
by
Name:
Title:
49
SEAGATE TECHNOLOGY CHINA HOLDING
COMPANY,
by
Name:
Title:
SEAGATE TECHNOLOGY ASIA HOLDINGS,
by
Name:
Title:
SEAGATE TECHNOLOGY (IRELAND),
by
Name:
Title:
SEAGATE TECHNOLOGY MEDIA (IRELAND),
by
Name:
Title:
SEAGATE TECHNOLOGY FAR EAST HOLDINGS,
by
Name:
50
Title:
SEAGATE TECHNOLOGY (PHILIPPINES),
by
Name:
Title:
SEAGATE TECHNOLOGY (SAN) HOLDINGS,
by
Name:
Title:
SEAGATE REMOVABLE STORAGE SOLUTIONS
HOLDINGS,
by
Name:
Title:
SEAGATE REMOVABLE STORAGE SOLUTIONS
INTERNATIONAL,
by
Name:
Title:
SEAGATE SOFTWARE (CAYMAN) HOLDINGS,
51
by
Name:
Title:
SEAGATE TECHNOLOGY (US) HOLDINGS, INC.,
by
Name:
Title:
SEAGATE TECHNOLOGY LLC,
by SEAGATE TECHNOLOGY (US) HOLDINGS,
INC., as Managing Member
by
Name:
Title:
SEAGATE US LLC,
by SEAGATE TECHNOLOGY LLC, as Sole
Member
by
Name:
Title:
REDWOOD ACQUISITION CORPORATION,
by
52
Name:
Title:
SEAGATE REMOVABLE STORAGE SOLUTIONS (US)
HOLDINGS, INC.,
by
Name:
Title:
SEAGATE REMOVABLE STORAGE SOLUTIONS
LLC,
by SEAGATE REMOVABLE STORAGE
SOLUTIONS (US) HOLDINGS, INC., as Sole
Member
by
Name:
Title:
SEAGATE RSS LLC,
by SEAGATE REMOVABLE STORAGE
SOLUTIONS LLC, as Sole Member
by
Name:
Title:
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP HOLDINGS, INC.,
53
by
Name:
Title:
QUINTA CORPORATION,
by
Name:
Title:
XIOTECH CORPORATION,
by
Name:
Title:
SEAGATE TECHNOLOGY (THAILAND) LIMITED,
by
Name:
Title:
SEAGATE TECHNOLOGY-▇▇▇▇▇▇▇ S. DE ▇.▇.
DE C.V.,
by
Name:
Title:
54
NIPPON SEAGATE INC.,
by
Name:
Title:
NIPPON SEAGATE SOFTWARE, INC.,
by
Name:
Title:
SEAGATE SINGAPORE DISTRIBUTION PTE LTD,
by
Name:
Title:
SEAGATE SOFTWARE INFORMATION PTE LTD,
by
Name:
Title:
SEAGATE DISTRIBUTION (UK) LIMITED,
by
Name:
Title:
55
SEAGATE TECHNOLOGY (▇▇▇▇▇▇) LIMITED,
by
Name:
Title:
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP LIMITED,
by
Name:
Title:
XIOTECH (CANADA) LIMITED,
by
Name:
Title:
SEAGATE SOFTWARE (CANADA), INC.,
by
Name:
Title:
56
Accepted:
CHASE SECURITIES INC.,
By
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.,
By
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Registration Department
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
By
Authorized Signatory
Address for notices pursuant to Section 9(c):
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department