STOCK OPTION AGREEMENT
THE OPTION EVIDENCED BY THIS OPTION AGREEMENT MAY NOT BE
TRANSFERRED EXCEPT TO A WHOLLY-OWNED SUBSIDIARY OF SEAGATE.
THIS STOCK OPTION AGREEMENT (the "Option Agreement") is dated
as of October 3, 1995, between Xxxxxx Peripherals, Inc., a
Delaware corporation ("Xxxxxx"), and Seagate Technology, Inc., a
Delaware corporation ("Seagate").
RECITALS
A. Seagate, Athena Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Seagate ("Sub"), and
Xxxxxx are simultaneously herewith entering into an Agreement and
Plan of Reorganization (the "Reorganization Agreement") which
provides, among other things, that, upon the terms and subject to
the conditions thereof, Sub will be merged with and into Xxxxxx
(the "Merger"), pursuant to which each issued and outstanding
share of common stock, par value $0.001 per share, of Xxxxxx (the
"Xxxxxx Common Stock") (including the associated Rights, as
defined in Section 1 below) outstanding immediately prior to the
Merger will be converted into 0.442 shares (the "Exchange Ratio")
of common stock of Seagate, par value $.01 per share.
B. As a condition to their willingness to enter into the
Reorganization Agreement, Seagate and Sub have required that
Xxxxxx agree, and Xxxxxx has agreed, to enter into this Option
Agreement, which provides, among other things, that Xxxxxx xxxxx
Seagate an option to purchase shares of Xxxxxx Common Stock upon
the terms and subject to the conditions provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements contained in this Option Agreement and
the Reorganization Agreement, the parties agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of
this Option Agreement, Xxxxxx hereby grants to Seagate an
irrevocable option (the "Option") to purchase 8,015,420 shares of
Xxxxxx Common Stock (the "Option Shares"), including the
associated rights (the "Rights") to purchase shares of Xxxxxx
Preferred Stock pursuant to the Preferred Shares Rights Agreement,
dated as of November 29, 1994, between Xxxxxx and The First
National Bank of Boston, as the same may be modified, terminated
or amended from time to time (the "Rights Agreement") in the
manner set forth below, at an exercise price of $17.90 per share
of Xxxxxx Common Stock, subject to adjustment as provided below
(the "Option Price"). All references in this Option Agreement to
shares of Xxxxxx Common Stock issued to Seagate hereunder shall be
deemed to include the Rights (subject to the terms of the Rights
Agreement). Capitalized terms used herein but not defined herein
shall have the meanings set forth in the Reorganization Agreement.
2. EXERCISE OF OPTION.
(a) Subject to the satisfaction or waiver of the
conditions set forth in Section 9 of this Option Agreement, prior
to the termination of this Option Agreement in accordance with its
terms, Seagate or its designee (which shall be a wholly-owned
subsidiary of Seagate) may exercise the Option, in whole or in
part, at any time or from time to time on or after the public
disclosure of, or Seagate shall have learned of, the earliest
event to occur of the following:
(i) any person or group other than Seagate or its
affiliates shall have acquired or become the beneficial owners
(within the meaning of Section 13(d)(3) of the Exchange Act) of
more than twenty percent (20%) of the outstanding shares of Xxxxxx
Common Stock, or shall have been granted any option or right,
conditional or otherwise, to acquire more than twenty percent
(20%) of the outstanding shares of Xxxxxx Common Stock (provided
that in the event that such option or right expires unexercised,
then to the extent the Option has not already been exercised, it
shall no longer be exercisable except as otherwise provided in
this Option Agreement);
(ii) any person other than Seagate and its
affiliates shall have made a tender offer or exchange offer (or
entered into an agreement to make such a tender offer or exchange
offer) for at least twenty percent (20%) of the then outstanding
shares of Xxxxxx Common Stock (provided that in the event that
such tender offer or exchange offer or other proposal is withdrawn
or terminates prior to consummation of such offer or proposal,
then to the extent the Option has not already been exercised, it
shall no longer be exercisable except as otherwise provided in
this Section 2(a)); or
(iii) Xxxxxx shall have entered into a written
definitive agreement or written agreement in principle in
connection with a liquidation, dissolution, recapitalization,
merger, consolidation or acquisition or purchase of all or a
material portion of the assets of Xxxxxx and its subsidiaries,
taken as a whole or all or a material portion of the equity
interest in Xxxxxx and its subsidiaries, taken as a whole, or
other similar transaction or business combination.
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(b) In the event Seagate wishes to exercise the Option
at such time as the Option is exercisable, Seagate shall deliver
written notice (the "Exercise Notice") to Xxxxxx specifying its
intention to exercise the Option, the total number of Option
Shares it wishes to purchase and a date and time for the closing
of such purchase (a "Closing") not later than thirty (30) business
days from the later of (i) the date such Exercise Notice is given
and (ii) the expiration or termination of any applicable waiting
period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"). If prior to the Expiration Date
(as defined in Section 11 below) any person or group (other than
Seagate or its affiliates) shall have made a bona fide proposal
that becomes publicly disclosed, with respect to a tender offer or
exchange offer for fifty percent (50%) or more of the then
outstanding shares of Xxxxxx Common Stock (a "Share Proposal"), a
merger, consolidation or other business combination (a "Merger
Proposal") or any acquisition of a material portion of the assets
of Xxxxxx (an "Asset Proposal"), or shall have acquired fifty
percent (50%) or more of the then outstanding shares of Xxxxxx
Common Stock (a "Share Acquisition"), and this Option is then
exercisable then Seagate, in lieu of exercising the Option, shall
have the right at any time thereafter (for so long as the Option
is exercisable under Section 2(a)) to request in writing that
Xxxxxx pay, and promptly (but in any event not more than five (5)
business days) after the giving by Seagate of such request, Xxxxxx
shall, subject to Section 2(c) below, pay to Seagate, in
cancellation of the Option, an amount in cash (the "Cancellation
Amount") equal to (i) the excess over the Option Price of the
greater of (A) the last sale price of a share of Xxxxxx Common
Stock as reported on the New York Stock Exchange on the last
trading day prior to the date of the Exercise Notice, or (B)(1)
the highest price per share of Xxxxxx Common Stock offered to be
paid or paid by any such person or group pursuant to or in
connection with a Share Proposal, a Share Acquisition or a Merger
Proposal or (2) the aggregate consideration offered to be paid or
paid in any transaction or proposed transaction in connection with
an Asset Proposal, divided by the number of shares of Xxxxxx
Common Stock then outstanding, multiplied by (ii) the number of
Option Shares then covered by the Option. If all or a portion of
the price per share of Xxxxxx Common Stock offered paid or payable
or the aggregate consideration offered paid or payable for the
assets of Xxxxxx, each as contemplated by the preceding sentence,
consists of noncash consideration, such price or aggregate
consideration shall be the cash consideration, if any, plus the
fair market value of the non-cash consideration as determined by
the investment bankers of Xxxxxx and the investment bankers of
Seagate.
(c) Following exercise of the Option by Seagate, in the
event that Seagate sells, pledges or otherwise disposes
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(including, without limitation, by merger or exchange) any of the
Option Shares (a "Sale") then (i) any Breakup Fee due and payable
by Xxxxxx following such time shall be offset by the amount
received (whether in cash, loan proceeds, securities or otherwise)
by Seagate in such Sale less the exercise price of such Option
Shares sold in the Sale (the "Offset Amount"), and (ii) if Xxxxxx
has paid to Seagate the Breakup Fee prior to the Sale, then
Seagate shall immediately remit to Xxxxxx the Offset Amount.
Further, notwithstanding Section 2(b) above, in the event that
Seagate receives the Cancellation Amount in lieu of exercising the
Option, then (A) any Breakup Fee due and payable by Xxxxxx
following such time shall be reduced by the Cancellation Amount
(the "Cancellation Offset Amount"), and (B) if Xxxxxx has paid to
Seagate the Breakup Fee prior to Seagate's receipt of such
Cancellation Amount, then Seagate shall only be entitled to
receive that portion of the Cancellation Offset Amount that
exceeds the Breakup Fee. Notwithstanding the above, in no event
shall the Offset Amount or the Cancellation Offset Amount be
greater than the Breakup Fee.
3. PAYMENT OF OPTION PRICE AND DELIVERY OF CERTIFICATE.
Any Closings under Section 2 of this Option Agreement shall be
held at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, or at such other place as Xxxxxx and Seagate may
agree. At any Closing hereunder, (a) Seagate or its designee will
make payment to Xxxxxx of the aggregate price for the Option
Shares being so purchased by delivery of a certified check,
official bank check or wire transfer of funds pursuant to Xxxxxx'x
instructions payable to Xxxxxx in an amount equal to the product
obtained by multiplying the Option Price by the number of Option
Shares to be purchased, and (b) upon receipt of such payment
Xxxxxx will deliver to Seagate or its designee (which shall be a
wholly-owned subsidiary of Seagate) a certificate or certificates
representing the number of validly issued, fully paid and non-
assessable Option Shares so purchased, in the denominations and
registered in such names (which shall be Seagate or a wholly-owned
subsidiary of Seagate) designated to Xxxxxx in writing by Seagate.
4. REGISTRATION AND LISTING OF OPTION SHARES.
(a) Xxxxxx agrees to use its reasonable best efforts to
(i) effect as promptly as possible upon the request of Seagate and
(ii) cause to become and remain effective for a period of not less
than six (6) months (or such shorter period as may be necessary to
effect the distribution of such shares), the registration under
the Securities Act of 1933, as amended (the "Securities Act") and
any applicable state securities laws, of all or any part of the
Option Shares as may be specified in such request, provided,
however, that (i) Seagate shall have the right to select the
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managing underwriter for any such offering after consultation with
Xxxxxx, which managing underwriter shall be reasonably acceptable
to Xxxxxx and (ii) Seagate shall not be entitled to more than two
(2) effective registration statements hereunder.
(b) In addition to such demand registrations, if Xxxxxx
proposes to effect a registration of Xxxxxx Common Stock for its
own account or for the account of any other stockholder of Xxxxxx,
Xxxxxx will give prompt written notice to all holders of Options
or Option Shares of its intention to do so and shall use its
reasonable best efforts to include therein all Option Shares
requested by Seagate to be so included. No registration effected
under this Section 4(b) shall relieve Xxxxxx of its obligations to
effect demand registrations under Section 4(a) hereof.
(c) Registrations effected under this Section 4 shall
be effected at Xxxxxx'x expense, including the fees and expenses
of counsel to the holder of Options or Option Shares but excluding
underwriting discounts and commissions to brokers or dealers. In
connection with each registration under this Section 4, Xxxxxx
shall indemnify and hold each holder of Options or Option Shares
participating in such offering (a "Holder"), its underwriters and
each of their respective affiliates harmless against any and all
losses, claims, damages, liabilities and expenses (including,
without limitation, investigation expenses and fees and
disbursements of counsel and accountants), joint or several, to
which such Holder, its underwriters and each of their respective
affiliates may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any registration statement (including any
prospectus therein), or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, other
than such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) which arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in written information furnished by a Holder to Xxxxxx
expressly for use in such registration statement.
(d) In connection with any registration statement
pursuant to this Section 4, each Holder agrees to furnish Xxxxxx
with such information concerning itself and the proposed sale or
distribution as shall reasonably be required in order to ensure
compliance with the requirements of the Securities Act. In
addition, Seagate shall indemnify and hold Xxxxxx, its
underwriters and each of their respective affiliates harmless
against any and all losses, claims, damages, liabilities and
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expenses (including without limitation investigation expenses and
fees and disbursements of counsel and accountants), joint or
several, to which Xxxxxx, its underwriters and each of their
respective affiliates may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in written information furnished by any
Holder to Xxxxxx expressly for use in such registration statement.
(e) Upon the issuance of Option Shares hereunder,
Xxxxxx will use its reasonable best efforts promptly to list such
Option Shares with the New York Stock Exchange or on such national
or other exchange on which the shares of Xxxxxx Common Stock are
at the time listed.
5. REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx hereby
represents and warrants to Seagate as follows:
(a) Xxxxxx is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has requisite power and authority to enter into and
perform this Option Agreement.
(b) The execution and delivery of this Option Agreement
and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of
Xxxxxx and no other corporate proceedings on the part of Xxxxxx
are necessary to authorize this Option Agreement or to consummate
the transactions contemplated hereby. The Board of Directors of
Xxxxxx has duly approved the issuance and sale of the Option
Shares, upon the terms and subject to the conditions contained in
this Option Agreement, and the consummation of the transactions
contemplated hereby. This Option Agreement has been duly and
validly executed and delivered by Xxxxxx and, assuming this Option
Agreement has been duly and validly authorized, executed and
delivered by Seagate, constitutes a valid and binding obligation
of Xxxxxx enforceable against Xxxxxx in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to creditors' rights
generally; the availability of injunctive relief and other
equitable remedies; and limitations imposed by law on
indemnification for liability under federal securities laws.
(c) Xxxxxx has taken all necessary action to authorize
and reserve for issuance and to permit it to issue, and at all
times from the date of this Option Agreement through the date of
expiration of the Option will have reserved for issuance upon
exercise of the Option, 8,015,420 authorized shares of Xxxxxx
Common Stock (or such other amount as may be required pursuant to
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Section 10 hereof), each of which, upon issuance pursuant to this
Option Agreement and when paid for as provided herein, will be
validly issued, fully paid and nonassessable, and shall be
delivered free and clear of all claims, liens, charges,
encumbrances and security interests and not subject to any
preemptive rights.
(d) The execution, delivery and performance of this
Option Agreement by Xxxxxx and the consummation by it of the
transactions contemplated hereby except as required by the HSR Act
(if applicable), and, with respect to Section 4, compliance with
the provisions of the Securities Act and any applicable state
securities laws, do not require the consent, waiver, approval,
license or authorization of or result in the acceleration of any
obligation under, or constitute a default under, any term,
condition or provision of any charter or bylaw, or any indenture,
mortgage, lien, lease, agreement, contract, instrument, order,
judgment, ordinance, regulation or decree or any restriction to
which Xxxxxx or any property of Xxxxxx or its subsidiaries is
bound, except where failure to obtain such consents, waivers,
approvals, licenses or authorizations or where such acceleration
or defaults could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6. REPRESENTATIONS AND WARRANTIES OF SEAGATE. Seagate
hereby represents and warrants to Xxxxxx that:
(a) Seagate is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has requisite power and authority to enter into and
perform this Option Agreement.
(b) The execution and delivery of this Option Agreement
and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of
Seagate and no other corporate proceedings on the part of Seagate
are necessary to authorize this Option Agreement or to consummate
the transactions contemplated hereby. This Option Agreement has
been duly and validly executed and delivered by Seagate and,
assuming this Option Agreement has been duly executed and
delivered by Xxxxxx, constitutes a valid and binding obligation of
Seagate enforceable against Seagate in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to creditors' rights
generally; the availability of injunctive relief and other
equitable remedies; and limitations imposed by law on
indemnification for liability under federal securities laws.
(c) Seagate or its designee is acquiring the Option and
it will acquire the Option Shares issuable upon the exercise
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thereof for its own account and not with a view to the
distribution or resale thereof in any manner not in accordance
with applicable law.
7. COVENANTS OF SEAGATE. Seagate agrees not to transfer or
otherwise dispose of the Option or the Option Shares, or any
interest therein, except in compliance with the Securities Act and
any applicable state securities law. Seagate further agrees to
the placement of the following legend on the certificate(s)
representing the Option Shares (in addition to any legend required
under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER EITHER (i) THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR (ii) ANY APPLICABLE STATE LAW
GOVERNING THE OFFER AND SALE OF SECURITIES. NO TRANSFER OR
OTHER DISPOSITION OF THESE SHARES, OR OF ANY INTEREST
THEREIN, MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND SUCH OTHER STATE
LAWS OR PURSUANT TO EXEMPTIONS FROM REGISTRATION UNDER THE
ACT, SUCH OTHER STATE LAWS, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER."
8. REASONABLE BEST EFFORTS. Seagate and Xxxxxx shall take,
or cause to be taken, all reasonable action to consummate and make
effective the transactions contemplated by this Option Agreement,
including, without limitation reasonable best efforts to obtain
any necessary consents of third parties and governmental agencies
and the filing by Seagate and Xxxxxx promptly after the date
hereof of any required HSR Act notification forms and the
documents required to comply with the HSR Act, subject to the
provisions of Section 5.9 of the Reorganization Agreement.
9. CERTAIN CONDITIONS. The obligation of Xxxxxx to issue
Option Shares under this Option Agreement upon exercise of the
Option shall be subject to the satisfaction or waiver of the
following conditions:
(a) any waiting periods applicable to the acquisition
of the Option Shares by Seagate pursuant to this Option Agreement
under the HSR Act shall have expired or been terminated;
(b) the representations and warranties of Seagate made
in Section 6 of this Option Agreement shall be true and correct in
all material respects as of the date of the Closing for the
issuance of such Option Shares; and
(c) no order, decree or injunction entered by any court
of competent jurisdiction or governmental, regulatory or
administrative agency or commission in the United States shall be
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in effect which prohibits the exercise of the Option or
acquisition of Option Shares pursuant to this Option Agreement.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the
event of any change in the number of issued and outstanding shares
of Xxxxxx Common Stock by reason of any stock dividend, stock
split, recapitalization, merger, rights offering, share exchange
or other change in the corporate or capital structure of Xxxxxx,
Seagate shall receive, upon exercise of the Option, the stock or
other securities, cash or property to which Seagate would have
been entitled if Seagate had exercised the Option and had been a
holder of record of shares of Xxxxxx Common Stock on the record
date fixed for determination of holders of shares of Xxxxxx Common
Stock entitled to receive such stock or other securities, cash or
property at the same aggregate price as the aggregate Option Price
of the Option Shares. In the event that any additional shares of
Common Stock are issued after September 2, 1995 (other than
pursuant to an event described in the preceding sentence of this
Option Agreement), the number of shares of Common Stock subject to
the Option shall be adjusted so that, after such issuance, the
number of shares of Common Stock subject to the Option (ignoring
any exercise of this Option) equals at least fifteen percent (15%)
of the number of shares of Xxxxxx Common Stock then issued and
outstanding (other than shares of Xxxxxx Common Stock issued
pursuant to the Option); provided, however, that nothing contained
in this Section 10 shall be deemed to authorize Xxxxxx to issue
any shares of Xxxxxx Common Stock in violation of the provisions
of the Reorganization Agreement.
11. EXPIRATION. The Option shall expire at the earlier of
(y) the Effective Time (as defined in the Reorganization
Agreement) or (z) 200 days after termination of the Reorganization
Agreement in accordance with the terms thereof (such expiration
date is referred to as the "Expiration Date").
12. GENERAL PROVISIONS.
(a) Survival. All of the representations, warranties
and covenants contained herein shall survive a Closing and shall
be deemed to have been made as of the date hereof and as of the
date of each Closing, except for the representations and
warranties in Section 5(d) hereof which shall be deemed to have
been made only as of the date hereof.
(b) Further Assurances. If Seagate exercises the
Option, or any portion thereof, in accordance with the terms of
this Option Agreement, Xxxxxx and Seagate will execute and deliver
all such further documents and instruments and use their
reasonable best efforts to take all such further action as may be
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necessary in order to consummate the transactions contemplated
thereby.
(c) Severability. It is the desire and intent of the
parties that the provisions of this Option Agreement be enforced
to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Option Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to
such jurisdiction, shall be ineffective, without invalidating the
remaining provisions of this Option Agreement or affecting the
validity or enforceability of such provision in any other juris-
diction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Option Agreement or affecting the
validity or enforceability of such provision in any other
jurisdiction.
(d) Assignment. This Option Agreement shall be binding
on and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that Xxxxxx shall not
be entitled to assign or otherwise transfer any of its rights or
obligations hereunder.
(e) Specific Performance. The parties agree and
acknowledge that in the event of a breach of any provision of this
Option Agreement, the aggrieved party would be without an adequate
remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Option Agreement, the aggrieved
party may elect to institute and prosecute proceedings in any
court of competent jurisdiction to enforce specific performance or
to enjoin the continuing breach of such provision, as well as to
obtain damages for breach of this Option Agreement. By seeking or
obtaining any such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it
may be entitled.
(f) Amendments. This Option Agreement may not be
modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by Seagate
and Xxxxxx.
(g) Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall
be deemed to be sufficient if contained in a written instrument
and shall be deemed given if delivered personally, telecopied,
sent by nationally-recognized, overnight courier or mailed by
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registered or certified mail (return receipt requested), postage
prepaid, to the other party at the following addresses (or such
other address for a party as shall be specified by like notice):
If to Seagate:
Seagate Technology, Inc.
000 Xxxx Xxxxx
X.X. Xxx 00000
Xxxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
If to Xxxxxx:
Xxxxxx Peripherals, Inc.
0000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: X. Xxxxxxx Xxxx and Xxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
(h) Headings. The headings contained in this Option
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Option Agreement.
(i) Counterparts. This Option Agreement may be
executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the
same agreement.
(j) Governing Law. This Option Agreement shall be
governed by and construed in accordance with the laws of the State
of Delaware applicable to contracts made and to be performed
therein.
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(k) Jurisdiction and Venue. Each of Xxxxxx and Seagate
hereby agrees that any proceeding relating to this Option
Agreement shall be brought in a state court of Delaware. Each of
Xxxxxx and Seagate hereby consents to personal jurisdiction in any
such action brought in any such Delaware court, consents to
service of process by registered mail made upon such party and
such party's agent and waives any objection to venue in any such
Delaware court or to any claim that any such Delaware court is an
inconvenient forum.
(l) Entire Agreement. This Option Agreement, the
Confidentiality Agreements and the Reorganization Agreement and
any documents and instruments referred to herein and therein
constitute the entire agreement between the parties hereto and
thereto with respect to the subject matter hereof and thereof and
supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject
matter hereof and thereof. This Option Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the
successors and permitted assigns of the parties hereto. Nothing
in this Option Agreement shall be construed to give any person
other than the parties to this Option Agreement or their
respective successors or permitted assigns any legal or equitable
right, remedy or claim under or in respect of this Option
Agreement or any provision contained herein.
(m) Expenses. Except as otherwise provided in this
Option Agreement, each party shall pay its own expenses incurred
in connection with this Option Agreement.
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IN WITNESS WHEREOF, the parties have caused this Option
Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
SEAGATE TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Administrative
Officer and Chief
Financial Officer
XXXXXX PERIPHERALS, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
[Signature Page to Stock Option Agreement]
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