\nARTICLE VI CONDITIONS TO THE MERGER…………………………………………………….31<\/p>\n 6.1 Conditions to Obligations of Each Party to Effect the Merger…………………31
\n 6.2 Additional Conditions to Obligations of Seagate…………………………….32
\n 6.3 Additional Conditions to the Obligations of Veritas and Merger Sub……………32<\/p>\n
ARTICLE VII TERMINATION, FEES AND EXPENSES; AMENDMENT AND WAIVER…………………………..33<\/p>\n
7.1 Termination…………………………………………………………….33
\n 7.2 Notice of Termination; Effect of Termination……………………………….35
\n 7.3 Fees and Expenses……………………………………………………….36
\n 7.4 Amendment………………………………………………………………37
\n 7.5 Extension; Waiver……………………………………………………….37<\/p>\n
ARTICLE VIII GENERAL PROVISIONS………………………………………………………..38<\/p>\n
8.1 Non-Survival of Representations and Warranties……………………………..38
\n 8.2 Notices………………………………………………………………..38
\n 8.3 Certain Interpretations………………………………………………….40
\n 8.4 Counterparts……………………………………………………………40
\n 8.5 Entire Agreement………………………………………………………..40
\n 8.6 Severability……………………………………………………………40
\n 8.7 Other Remedies; Specific Performance………………………………………41
\n 8.8 Governing Law…………………………………………………………..41
\n 8.9 Rules of Construction……………………………………………………41
\n 8.10 Assignment……………………………………………………………..41
\n 8.11 Waiver of Jury Trial…………………………………………………….41
\n<\/c><\/s><\/caption>\n<\/table>\n
-iii-
\n 5<\/p>\n
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION<\/p>\n
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “AGREEMENT”)
\nis made and entered into as of March 29, 2000 among VERITAS Software
\nCorporation, a Delaware corporation (“VERITAS”), Victory Merger Sub, Inc., a
\nDelaware corporation and a wholly owned subsidiary of Veritas (“MERGER SUB”),
\nand Seagate Technology, Inc., a Delaware corporation (“SEAGATE”).<\/p>\n
RECITALS<\/p>\n
A. Upon the terms and subject to the conditions of this Agreement and in
\naccordance with the General Corporation Law of the State of Delaware (“DELAWARE
\nLAW”), Veritas and Seagate have agreed to enter into a business combination
\ntransaction pursuant to which Merger Sub will merge with and into Seagate (the
\n“MERGER”).<\/p>\n
B. The Boards of Directors of Veritas and Merger Sub (i) have determined
\nthat the Merger is fair to, advisable and in the best interests of, Veritas,
\nMerger Sub and their stockholders, (ii) have approved this Agreement, the Merger
\nand the other transactions contemplated by this Agreement, and (iii) have
\ndetermined to recommend approval of the Merger. In addition, the Board of
\nDirectors of Veritas has determined to recommend approval of, to the extent not
\npreviously authorized, an amendment to Veritas’ Certificate of Incorporation to
\nincrease the authorized number of shares of Veritas common stock from
\n500,000,000 to an additional amount sufficient to permit the issuance of Veritas
\nCommon Stock contemplated hereby (the “SHARE INCREASE”).<\/p>\n
C. The Board of Directors of Seagate (i) has determined that the Merger
\nis fair to, advisable and in the best interests of, Seagate and its
\nstockholders, (ii) has approved this Agreement, the Merger and the other
\ntransactions contemplated by this Agreement, and (iii) has determined to
\nrecommend the approval of this Agreement and the Merger by the stockholders of
\nSeagate.<\/p>\n
D. Veritas, Merger Sub and Seagate intend, by entering into this
\nAgreement, to adopt a plan of “reorganization” within the meaning of Section 368
\nof the Internal Revenue Code of 1986, as amended (the “CODE”).<\/p>\n
NOW, THEREFORE, in consideration of the foregoing premises, and the
\ncovenants, promises and representations set forth herein, and for other good and
\nvaluable consideration, the receipt and sufficiency of which are hereby
\nacknowledged and accepted, the parties hereto hereby agree as follows:<\/p>\n
ARTICLE I
\n THE MERGER<\/p>\n
1.1 The Merger. At the Effective Time (as defined in Section 1.2
\nhereof), and upon the terms and subject to the conditions of this Agreement and
\nin accordance with the applicable provisions of Delaware Law, Merger Sub shall
\nbe merged with and into Seagate, the separate corporate existence of Merger Sub
\nshall cease and Seagate shall continue as the surviving corporation. Seagate as
\nthe surviving<\/p>\n
6<\/p>\n
corporation after the Merger is hereinafter sometimes referred to as the
\n“SURVIVING CORPORATION.”<\/p>\n
1.2 Effective Time; Closing. As soon as practicable on or after the
\nClosing Date (as defined in this Section 1.2), and upon the terms and subject to
\nthe conditions of this Agreement, the parties hereto shall cause the Merger to
\nbe consummated by filing a Certificate of Merger (the “CERTIFICATE OF MERGER”)
\nwith the Secretary of State of the State of Delaware in accordance with the
\nrelevant provisions of Delaware Law (the time of such filing (or such later time
\nas may be agreed upon in writing by Veritas and Seagate and specified in the
\nCertificate of Merger) being referred to herein as the “EFFECTIVE TIME”). The
\nclosing of the Merger and the other transactions contemplated hereby (the
\n“CLOSING”) shall take place at the offices of Wilson Sonsini Goodrich & Rosati,
\nProfessional Corporation, located at One Market Plaza, Spear Tower, Suite 1600,
\nSan Francisco, California 94105, at a date and time to be specified by Veritas
\nand Seagate, which shall be no later than the second (2nd) business day
\nfollowing the satisfaction or, if permitted pursuant hereto, waiver of the
\nconditions set forth in Article VI hereof, or at such other location, date and
\ntime as Veritas and Seagate shall mutually agree in writing. The date upon which
\nthe Closing actually occurs shall be referred to herein as the “CLOSING DATE.”<\/p>\n
1.3 Effect of the Merger. At the Effective Time, the effect of the
\nMerger shall be as provided in this Agreement and the applicable provisions of
\nDelaware Law. Without limiting the generality of the foregoing, and subject
\nthereto, at the Effective Time all of the property, rights, privileges, powers
\nand franchises of Seagate and Merger Sub shall vest in the Surviving
\nCorporation, and all of the debts, Liabilities and duties of Seagate and Merger
\nSub shall become the debts, Liabilities and duties of the Surviving Corporation.<\/p>\n
1.4 Certificate of Incorporation and Bylaws of Surviving Corporation.<\/p>\n
(a) Certificate of Incorporation. As of the Effective Time, the
\nCertificate of Incorporation of Merger Sub, as in effect immediately prior to
\nthe Effective Time, shall be the Certificate of Incorporation of the Surviving
\nCorporation, until thereafter amended as provided by Delaware Law and such
\nCertificate of Incorporation.<\/p>\n
(b) Bylaws. As of the Effective Time, the Bylaws of Merger Sub,
\nas in effect immediately prior to the Effective Time, shall be the Bylaws of the
\nSurviving Corporation, until thereafter amended as provided by Delaware Law, the
\nCertificate of Incorporation of the Surviving Corporation and such Bylaws.<\/p>\n
(c) Directors and Officers. As of the Effective Time, Mr. Jay
\nJones shall be the sole director of the Surviving Corporation, and the officers
\nof the Surviving Corporation shall be as designated by Veritas.<\/p>\n
1.5 Effect on Capital Stock. Upon the terms and subject to the
\nconditions of this Agreement, at the Effective Time, by virtue of the Merger and
\nwithout any action on the part of Merger Sub, Seagate or the holders of any of
\nthe following securities, the following shall occur:<\/p>\n
(a) Conversion of Seagate Common Stock. Except as otherwise
\nprovided in this Agreement, each share of Common Stock, par value $0.01 per
\nshare, of Seagate (the<\/p>\n
-2-
\n 7<\/p>\n
“SEAGATE COMMON STOCK”) outstanding immediately prior to the Effective Time
\n(other than any shares of Seagate Common Stock to be canceled pursuant to
\nSection 1.5(b) hereof) shall be canceled and extinguished and automatically
\nconverted (subject to the terms of this Section 1.5) into the right to receive
\n(i) the Stock Portion (as defined in Section 1.11 hereof), (ii) the Cash Portion
\n(as defined in Section 1.11 hereof) and (iii) the TRA Right (the Stock Portion,
\nthe Cash Portion and a TRA Right being referred to herein, collectively, as the
\n“MERGER CONSIDERATION”) upon the surrender of the certificate representing such
\nshare of Seagate Common Stock in the manner set forth in Section 1.6 hereof (or
\nin the case of a lost, stolen or destroyed certificate, upon delivery of an
\naffidavit (and bond, if required) in the manner set forth in Section 1.8
\nhereof).<\/p>\n
(b) Cancellation of Certain Seagate Common Stock. Unless
\notherwise determined by Veritas, each share of Seagate Common Stock (i) held in
\nthe treasury of Seagate, or (ii) owned by Merger Sub, Veritas or any direct or
\nindirect wholly-owned subsidiary of Seagate or of Veritas, in either case
\nimmediately prior to the Effective Time, shall be canceled and extinguished
\nwithout any conversion thereof.<\/p>\n
(c) Seagate Stock Options; Seagate Employee Stock Purchase Plan.
\nAt the Effective Time, (i) the vesting restrictions applicable to all options to
\npurchase Seagate Common Stock (“SEAGATE OPTIONS”) outstanding immediately prior
\nto the Effective Time under all Seagate stock option and stock purchase plans
\n(collectively, the “SEAGATE STOCK OPTION PLANS”), excluding the Rolled Options
\n(as defined in Section 1.11 hereof), shall be accelerated such that no vesting
\nrestrictions remain thereon, (ii) each such Seagate Option (excluding the Rolled
\nOptions) shall, for all purposes of and under this Agreement, be converted into
\na number of shares of Seagate Common Stock (“SEAGATE OPTION SHARES”) equal to
\n(x) the aggregate number of shares of Seagate Common Stock issuable upon the
\nexercise in full of such Seagate Option, minus (y) the NE Amount in respect of
\nsuch Seagate Option, (iii) the Seagate Option Shares so converted shall be
\nconsidered outstanding shares of Seagate Common Stock for all purposes of and
\nunder this Agreement, including, without limitation, the right to receive the
\nMerger Consideration pursuant to the Merger in accordance with Section
\n1.11(a)(xvii) and Section 1.5(a) hereof, (iv) the Rolled Options shall be
\ncanceled and extinguished without any payment of Merger Consideration or any
\nother consideration therefor, and (v) in accordance with the terms of Seagate’s
\n1999 Employee Stock Purchase Plan (the “SEAGATE ESPP”), all rights to purchase
\nshares of Seagate Common Stock outstanding under the Seagate ESPP immediately
\nprior to the Effective Time shall be exercised and each share of Seagate Common
\nStock purchased pursuant to such exercise shall by virtue of the Merger, and
\nwithout any action on the part of the holder thereof, be converted into the
\nright to receive the Merger Consideration payable in respect thereof, without
\nthe issuance of certificates representing issued and outstanding shares of
\nSeagate Common Stock. The Seagate ESPP shall be terminated immediately following
\nsuch exercises.<\/p>\n
(d) Required Withholding. Each of the Exchange Agent (as defined
\nin Section 1.6(a) hereof) and Veritas shall be entitled to deduct and withhold
\nfrom the Merger Consideration or any other consideration deliverable or
\notherwise payable pursuant to the Merger and this Agreement to any holder or
\nformer holder of Seagate Common Stock or Seagate Option Shares such amounts as
\nmay be required to be deducted or withheld therefrom under the Code or under any
\napplicable provision of state, local or foreign tax law or under any other
\napplicable legal requirement. To the extent such amounts are so deducted or
\nwithheld, such amounts shall<\/p>\n
-3-
\n 8<\/p>\n
be treated for all purposes under this Agreement as having been delivered or
\notherwise paid to the person to whom such amounts would otherwise have been
\ndelivered or otherwise paid pursuant to the Merger and this Agreement.<\/p>\n
(e) Adjustments to Exchange Ratio. The Merger Consideration shall
\nbe adjusted to reflect appropriately the effect of any stock split, reverse
\nstock split, stock dividend (including any dividend or distribution of
\nsecurities convertible into Veritas Common Stock or Seagate Common Stock),
\nextraordinary cash dividend, reorganization, recapitalization, reclassification,
\ncombination, consolidation or subdivision, exchange of shares or other like
\nchange with respect to Veritas Common Stock or Seagate Common Stock occurring on
\nor after the date hereof and prior to the Effective Time.<\/p>\n
(f) Fractional Shares. No fraction of a share of Veritas Common
\nStock shall be issued pursuant to the Merger, but in lieu thereof each holder of
\nshares of Seagate Common Stock and Seagate Option Shares who would otherwise be
\nentitled to a fraction of a share of Veritas Common Stock (after aggregating all
\nfractional shares of Veritas Common Stock to be received by such holder)
\npursuant to the Merger shall receive from Veritas an amount in cash (rounded to
\nthe nearest whole cent), without interest, equal to the product obtained by
\nmultiplying (x) such fraction by (y) the Average Veritas Stock Price (as defined
\nin Section 1.11 hereof).<\/p>\n
(g) Capital Stock of Merger Sub. Each share of Common Stock,
\n$0.01 par value per share, of Merger Sub (the “MERGER SUB COMMON STOCK”) issued
\nand outstanding immediately prior to the Effective Time shall be converted into
\none validly issued, fully paid and nonassessable share of Common Stock, $0.01
\npar value per share, of the Surviving Corporation. Each certificate evidencing
\nownership of shares of Merger Sub Common Stock shall evidence ownership of such
\nshares of capital stock of the Surviving Corporation.<\/p>\n
1.6 Surrender of Certificates.<\/p>\n
(a) Exchange Agent. Veritas shall select an institution
\nreasonably satisfactory to Seagate to act as the exchange agent (the “EXCHANGE
\nAGENT”) for the Merger.<\/p>\n
(b) Veritas to Provide Merger Consideration. Promptly following
\nthe Effective Time, Veritas shall make available to the Exchange Agent for
\nexchange in accordance with this Article I, (i) the shares of Veritas Common
\nStock issuable pursuant to Section 1.5(a) or Section 1.5(c) hereof in exchange
\nfor outstanding shares of Seagate Common Stock and Seagate Option Shares, (ii)
\nthe cash payable pursuant to Section 1.5(a) hereof in exchange for outstanding
\nshares of Seagate Common Stock and Seagate Option Shares, (iii) cash in an
\namount sufficient to make the cash payments in lieu of fractional shares
\npursuant to Section 1.5(f) hereof, and (iv) cash in an amount sufficient to pay
\nany dividends or distributions to which holders of shares of Seagate Common
\nStock and Seagate Option Shares may be entitled pursuant to Section 1.6(e)
\nhereof. From and after the date that is 6 months after the Effective Date,
\nVeritas shall have the right to cause the Exchange Agent to transfer to Veritas
\nall funds deposited by Veritas with the Exchange Agent pursuant to this Section
\n1.6(b) that have not been distributed pursuant to Section 1.6(d), and all
\nholders of Seagate Common Stock and Seagate Options<\/p>\n
-4-
\n 9<\/p>\n
entitled to receive the Merger Consideration shall thereafter become general
\ncreditors of Veritas in respect of the Merger Consideration.<\/p>\n
(c) Exchange Procedures for Seagate Common Stock Certificates.
\nPromptly following the Effective Time, Veritas shall cause the Exchange Agent to
\nmail to each holder of record (as of the Effective Time) of a certificate or
\ncertificates (the “CERTIFICATES”) which immediately prior to the Effective Time
\nrepresented outstanding shares of Seagate Common Stock and which were converted
\ninto the right to receive shares of Veritas Common Stock and cash pursuant to
\nSection 1.5(a) hereof, cash in lieu of any fractional shares pursuant to Section
\n1.5(f) hereof and any dividends or other distributions pursuant to Section
\n1.6(e) hereof, (i) a letter of transmittal (which shall specify that delivery
\nshall be effected, and risk of loss and title to the Certificates shall pass,
\nonly upon delivery of the Certificates to the Exchange Agent, and which shall be
\nin such form and have such other provisions as Veritas may reasonably specify),
\nand (ii) instructions for use in effecting the surrender of the Certificates in
\nexchange for certificates representing shares of Veritas Common Stock issuable
\nand cash payable in respect of such shares of Seagate Common Stock pursuant to
\nSection 1.5(a) hereof, cash in lieu of any fractional shares payable in respect
\nof such shares of Seagate Common Stock pursuant to Section 1.5(f) hereof and any
\ndividends or other distributions payable in respect of such Seagate Common Stock
\npursuant to Section 1.6(e) hereof. Upon the surrender and delivery of
\nCertificates for cancellation to the Exchange Agent (or to such other agent or
\nagents as may be appointed by Veritas), and such letter of transmittal, duly
\ncompleted and validly executed in accordance with the instructions thereto, the
\nholders of such Certificates shall be entitled to receive in exchange therefor
\ncertificates representing the number of whole shares of Veritas Common Stock
\nissuable and cash payable in respect of such shares of Seagate Common Stock
\npursuant to Section 1.5(a) hereof, cash in lieu of fractional shares payable in
\nrespect of such shares of Seagate Common Stock pursuant to Section 1.5(f) hereof
\nand any dividends or distributions payable in respect of such shares of Seagate
\nCommon Stock pursuant to Section 1.6(e) hereof, and the Certificates so
\nsurrendered shall forthwith be canceled. Until so surrendered, outstanding
\nCertificates will be deemed from and after the Effective Time, for all corporate
\npurposes, subject to Section 1.6(e) hereof as to the payment of dividends and
\nother distributions, to evidence the ownership of a number of full shares of
\nVeritas Common Stock and the right to receive an amount in cash into which such
\nshares of Seagate Common Stock shall have been so converted pursuant to Section
\n1.5(a) hereof, and the right to receive an amount in cash in lieu of the
\nissuance of any fractional shares payable in respect of such shares of Seagate
\nCommon Stock pursuant to Section 1.5(f) hereof and any dividends or
\ndistributions payable in respect of such shares of Seagate Common Stock pursuant
\nto Section 1.6(e) hereof.<\/p>\n
(d) Exchange Procedures for Seagate Options. Promptly following
\nthe Effective Time, Veritas shall cause the Exchange Agent to mail to each
\nholder (as of the Effective Time) of a Seagate Option which was converted into
\nthe right to receive the Merger Consideration pursuant to Section 1.5(a) hereof,
\ncash in lieu of any fractional shares pursuant to Section 1.5(f) hereof and any
\ndividends or other distributions pursuant to Section 1.6(e) hereof, (i) a letter
\nof transmittal (which shall be in such form and have such other provisions as
\nVeritas may reasonably specify), and (ii) instructions for use in receiving the
\ncertificates representing shares of Veritas Common Stock issuable and cash
\npayable in respect of such Seagate Options pursuant to Section 1.5(a) and
\nSection 1.5(c), cash in lieu of any fractional shares payable in<\/p>\n
-5-
\n 10<\/p>\n
respect of such Seagate Options pursuant to Section 1.5(f) hereof and any
\ndividends or other distributions payable pursuant to Section 1.6(e) hereof. Upon
\nthe delivery of such letter of transmittal, duly completed and validly executed
\nin accordance with the instructions thereto, to the Exchange Agent (or to such
\nother agent or agents as may be appointed by Veritas), the holders of Seagate
\nOptions shall be entitled to receive the Merger Consideration payable to them
\npursuant to Common Stock issuable and cash issuable in respect of such Seagate
\nOptions pursuant to Section 1.5(a) and Section 1.5(c), cash in lieu of
\nfractional shares payable in respect of such Seagate Options pursuant to Section
\n1.5(f) hereof and any dividends or distributions payable in respect of such
\nSeagate Options pursuant to Section 1.6(e) hereof.<\/p>\n
(e) Distributions With Respect to Unexchanged Shares. No
\ndividends or other distributions declared or made after the date of this
\nAgreement in respect of Veritas Common Stock with a record date after the
\nEffective Time shall be paid to the holders of any unsurrendered Certificates or
\nSeagate Options with respect to the shares of Veritas Common Stock represented
\nthereby until the holders of record of such Certificates shall surrender such
\nCertificates or the holders of such Seagate Options shall return a letter of
\ntransmittal, duly completed and validly executed in accordance with the
\ninstructions thereto. Subject to applicable law, following surrender of any such
\nCertificates and return of such letter of transmittal, the Exchange Agent shall
\ndeliver to the record holders of such Certificates or the holders of such
\nSeagate Options, as the case may be, without interest, certificates representing
\nwhole shares of Veritas Common Stock issued in exchange therefor, along with
\npayment in lieu of fractional shares payable in respect of shares of Seagate
\nCommon Stock or Seagate Options pursuant to Section 1.5(g) hereof and the amount
\nof any such dividends or other distributions with a record date after the
\nEffective Time payable in respect of such whole shares of Veritas Common Stock.<\/p>\n
(f) Transfers of Ownership. If certificates for shares of Veritas
\nCommon Stock are to be issued in a name other than that in which the
\nCertificates surrendered in exchange therefor are registered, it will be a
\ncondition of the issuance thereof that the Certificates so surrendered will be
\nproperly endorsed and otherwise in proper form for transfer and that the persons
\nrequesting such exchange will have paid to Veritas (or any agent designated by
\nit) any transfer or other taxes required by reason of the issuance of
\ncertificates for shares of Veritas Common Stock in any name other than that of
\nthe registered holders of the Certificates surrendered, or established to the
\nsatisfaction of Veritas or any agent designated by it that such tax has been
\npaid or is not payable.<\/p>\n
(g) No Liability. Notwithstanding anything to the contrary in
\nthis Section 1.6, neither the Exchange Agent, Veritas, the Surviving Corporation
\nnor any party hereto shall be liable to a holder of shares of Veritas Common
\nStock or Seagate Common Stock for any amount properly paid to a public official
\npursuant to any applicable abandoned property, escheat or similar law.<\/p>\n
1.7 No Further Ownership Rights in Seagate Common Stock. All cash and
\nshares of Veritas Common Stock issued pursuant to and in accordance with the
\nterms of this Article I (including any cash paid in respect thereof pursuant to
\nSection 1.5(f) and Section 1.6(e) hereof) shall be deemed to have been issued in
\nfull satisfaction of all rights pertaining to shares of Seagate Common Stock,
\nand there shall be no further registration of transfers on the records of<\/p>\n
-6-
\n 11<\/p>\n
the Surviving Corporation of shares of Seagate Common Stock which were
\noutstanding immediately prior to the Effective Time. If, after the Effective
\nTime, Certificates are presented to the Surviving Corporation for any reason,
\nthey shall be canceled and exchanged as provided in this Article I.<\/p>\n
1.8 Lost, Stolen or Destroyed Certificates. In the event that any
\nCertificates shall have been lost, stolen or destroyed, the Exchange Agent shall
\nissue in exchange for such lost, stolen or destroyed Certificates, upon the
\nmaking of an affidavit of that fact by the holder thereof, shares of Veritas
\nCommon Stock and cash payable in respect thereof pursuant to Section 1.5(a) or
\nSection 1.5(b) hereof, cash in lieu of fractional shares, if any, payable in
\nrespect thereof pursuant to Section 1.5(f) hereof and any dividends or
\ndistributions payable in respect thereof pursuant to Section 1.6(e) hereof;
\nprovided, however, that Veritas may, in its discretion and as a condition
\nprecedent to the issuance and payment thereof, require the owner of such lost,
\nstolen or destroyed Certificates to deliver a bond in such sum as it may
\nreasonably direct as indemnity against any claim that may be made against
\nVeritas or the Exchange Agent with respect to the Certificates alleged to have
\nbeen so lost, stolen or destroyed.<\/p>\n
1.9 Tax Consequences. Veritas and Seagate intend that the Merger shall
\nconstitute a “reorganization” within the meaning of Section 368 of the Code.
\nVeritas and Seagate adopt this Agreement as a “plan of reorganization” within
\nthe meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Income
\nTax Regulations.<\/p>\n
1.10 Taking of Necessary Action; Further Action. If, at any time after
\nthe Effective Time, any further action is necessary or desirable to carry out
\nthe purposes and intent of this Agreement and to vest in the Surviving
\nCorporation full right, title and possession in and to all of the assets,
\nproperties, rights, privileges, powers and franchises of Seagate and Merger Sub,
\nthe officers and directors of Merger Sub and Seagate shall be authorized to
\ntake, and shall take, all such lawful and necessary action.<\/p>\n
1.11 Definitions.<\/p>\n
(a) For all purposes of and under this Agreement, the following
\nterms shall have the following respective meanings:<\/p>\n
(i) “ADMINISTRATORS” has the meaning set forth in Section
\n5.15.<\/p>\n
(ii) “AVAILABLE AMOUNT” means an amount equal to Cash held
\nby Seagate immediately prior to the Effective Time including net amounts
\nreceived under the OD Documents minus the VP Amount.<\/p>\n
(iii) “AVERAGE SEAGATE STOCK PRICE” means the average
\nclosing price of a share of Seagate Common Stock, as reported on the NYSE, for
\nthe five (5) consecutive trading days ending two (2) trading days immediately
\npreceding the Closing Date.<\/p>\n
(iv) “AVERAGE VERITAS STOCK PRICE” means the average
\nclosing price of a share of Veritas Common Stock, as reported on the Nasdaq, for
\nthe five (5) consecutive<\/p>\n
-7-
\n 12<\/p>\n
trading days ending two (2) trading days immediately preceding the Closing Date,
\nas with respect to the VP Amount, preceding the date that Veritas makes its
\nelection.<\/p>\n
(v) “CASH” means cash, cash equivalents and short-term
\ninvestments (including all debt securities available for sale) as determined in
\naccordance with GAAP and consistent with the determination thereof in the Recent
\nSEC Reports.<\/p>\n
(vi) “CASH PORTION” means an amount, in cash, equal to the
\nquotient obtained by dividing (x) the Available Amount by (y) the Outstanding
\nShares.<\/p>\n
(vii) “DESIGNATED LIABILITIES” mean all Liabilities
\n(including with respect to Taxes) relating solely to (i) the Designated Assets
\nand (ii) the transactions pursuant to this Agreement. Without expanding the
\ndefinition of Designated Liabilities, Designated Liabilities shall not include
\nLiabilities relating to the transactions contemplated by the OD Documents or any
\nLiabilities included in the Adjustment Amount (as defined in the OD Documents).<\/p>\n
(viii) “GOVERNMENTAL ENTITY” means any court,
\nadministrative agency or commission or other governmental authority or
\ninstrumentality.<\/p>\n
(ix) “INDEMNIFICATION AGREEMENT” means the Indemnification
\nAgreement dated as of even date herewith by and among Veritas, Seagate and
\nPurchaser and each of its Subsidiaries.<\/p>\n
(x) “ISA AMOUNT” means a number of shares of Veritas
\nCommon Stock equal to the quotient obtained by dividing (x) (A) the Stipulated
\nAmount, divided by (B) the Average Veritas Stock Price, by (y) the Outstanding
\nShares.<\/p>\n
(xi) “KNOWLEDGE” means, with respect to either party
\nhereto, the actual knowledge of the executive officers of such party.<\/p>\n
(xii) “LIABILITY” or “LIABILITIES” means any and all
\ndebts, liabilities and obligations of any type or nature whatsoever, whether
\naccrued or fixed, absolute or contingent, matured or unmatured or determined or
\ndeterminable, including, without limitation, those arising under any Law
\n(including, without limitation, any Environmental Law), Action or Governmental
\nOrder and those arising under any contract, agreement, arrangement, commitment
\nor undertaking.<\/p>\n
(xiii) “LIEN” means any lien, security interest, adverse
\nclaim, charge, mortgage or other encumbrance.<\/p>\n
(xiv) “MATERIAL ADVERSE EFFECT ON VERITAS” means any
\nchange, event, violation, inaccuracy, circumstance or effect that is materially
\nadverse to the business, assets (including intangible assets), capitalization,
\nfinancial condition or results of operations of Veritas and its Subsidiaries,
\ntaken as a whole; provided, however, that in no event shall (i) a decrease in
\nVeritas’ stock price or the failure to meet or exceed Wall Street research
\nanalysts’ or Veritas’ internal earnings or other estimates or projections in and
\nof itself constitute a “Material Adverse Effect on Veritas,” or (ii) any change,
\nevent, violation, inaccuracy, circumstance or effect that<\/p>\n
-8-
\n 13<\/p>\n
results from (A) the public announcement or pendency of the transactions
\ncontemplated hereby, (B) changes affecting the software industry generally or
\nthe segments thereof in which Veritas competes, or (C) changes affecting the
\nUnited States economy generally, constitute a “Material Adverse Effect on
\nVeritas.”<\/p>\n
(xv) “MATERIAL ADVERSE EFFECT ON SEAGATE” means any
\nchange, event, violation, inaccuracy, circumstance or effect that, after giving
\neffect to the consummation of the transactions contemplated by the OD Documents,
\ngives rise to, or is reasonably likely to give rise to, any Liability (absolute,
\naccrued, contingent or otherwise, but excluding the Designated Liabilities) of
\nSeagate (or Veritas following the Effective Time) for which Veritas is not
\nentitled to indemnification under the Indemnification Agreement following the
\nEffective Time.<\/p>\n
(xvi) “NASDAQ” means the Nasdaq National Market System of
\nthe National Association of Securities Dealers, Inc.<\/p>\n
(xvii) “NE AMOUNT” means an amount equal to the quotient
\nobtained by dividing (x) (A) the per share exercise price of a Seagate Option,
\nmultiplied by (B) the aggregate number of shares of Seagate Common Stock
\nissuable upon the exercise in full of such Seagate Option immediately prior to
\nthe Effective Time, by (y) the Average Seagate Stock Price.<\/p>\n
(xviii)”NYSE” means the New York Stock Exchange.<\/p>\n
(xix) “OD DOCUMENTS” means the Stock Purchase Agreement of
\neven date herewith by and among Seagate, Seagate Software and Suez Acquisition
\nCompany (Cayman) Limited.<\/p>\n
(xx) “OUTSTANDING SHARES” means the aggregate number of
\nshares of Seagate Common Stock outstanding immediately prior to the Effective
\nTime, after giving effect to the treatment of Seagate Options under Section
\n1.5(c) hereof.<\/p>\n
(xxi) “PRO RATA PORTION” means with respect to each person
\nreceiving a TRA Right, the number of shares of Seagate Common Stock held by such
\nperson immediately prior to the Effective Time, including shares deemed
\noutstanding by virtue of Section 1.5(c) divided by the Outstanding Shares.<\/p>\n
(xxii) “PURCHASER” has the meaning provided in the Stock
\nPurchase Agreement.<\/p>\n
(xxiii)”ROLLED OPTIONS” means the Seagate Options and
\nSeagate Common Stock held by the individuals and in the amounts indicated in the
\nRollover Commitment Agreements previously delivered to the parties hereto.<\/p>\n
(xxiv) “SEAGATE RESTRICTED STOCK” means shares of Seagate
\nCommon Stock subject to a right of repurchase or other restriction.<\/p>\n
(xxv) “SEAGATE SOFTWARE” means Seagate Software Holdings,
\nInc.<\/p>\n
(XXVI) “STIPULATED AMOUNT” means the sum of:<\/p>\n
-9-
\n 14<\/p>\n
(1) with respect to all shares of SanDisk Corp.
\n(“SANDISK”) held by Seagate immediately prior to the Effective Time (the
\n“SANDISK SHARES”), (A) the product obtained by multiplying (x) the average
\nclosing price of a share of SanDisk common stock, as reported on the Nasdaq, for
\nthe five (5) consecutive trading days ending two (2) trading days immediately
\npreceding the Closing Date (the “REFERENCE AVERAGE”), by (y) 0.8 (the product of
\n(x) and (y) being the “Value”), minus (B) 0.4 multiplied by the difference
\nbetween the Value and Seagate’s tax basis in a SanDisk Share; multiplied by (C)
\nthe number of SanDisk Shares;<\/p>\n
(2) with respect to all shares of CVC, Inc.
\n(“CVCI”) and Gadzoox Networks Inc. (“GADZOOX”) held by Seagate immediately prior
\nto the Effective Time (respectively, the “CVCI SHARES” and the “GADZOOX
\nSHARES”), (A) the product obtained by multiplying (x) the Reference Average for
\nshares of CVCI or Gadzoox common stock, respectively, by (y) 0.6 (the product of
\n(x) and (y) being the “Value”), minus (B) 0.4 multiplied by the difference
\nbetween the Value and Seagate’s tax basis in a CVCI or Gadzoox Share, as the
\ncase may be, multiplied by (C) the number of CVCI Shares and Gadzoox Shares,
\nrespectively; and<\/p>\n
(3) with respect to shares of Dragon Systems, Inc.
\n(“DRAGON”) held by Seagate immediately prior to the Effective Time ( including
\nshares into which such shares may have been converted, the “DRAGON SHARES”), (i)
\nif such Dragon Shares are not listed for trading on a national securities
\nexchange or over-the-counter market, then an amount mutually agreed upon by the
\nparties hereto at least ten days prior to the Seagate Stockholders Meeting, (ii)
\nif shares of Dragon are listed for trading on a national securities exchange or
\nover-the-counter-market, then (A) the product obtained by multiplying (x) the
\nReference Average for shares of Dragon common stock, by (y) 0.6 (the product of
\n(x) and (y) being the “Value”), minus (B) 0.4 multiplied by the difference
\nbetween the Value and Seagate’s tax basis in a Dragon Share multiplied by (C)
\nthe number of Dragon Shares (other than those subject to any escrow agreement).
\nIf the parties are unable to agree upon a value under clause (i) above or the
\nvaluation of any escrowed Dragon Shares, then the parties agree to include the
\nDragon Shares and such escrowed shares in the TRA Amount as provided in Section
\n5.15 hereof.<\/p>\n
(xxvii) “STOCK PORTION” means a number of shares of
\nVeritas Common Stock equal to the sum of (i) the quotient obtained by dividing
\n(x) (A) the number of shares of Veritas Common Stock held by Seagate immediately
\nprior to the Effective Time, multiplied by (B) 0.853743, by (y) the Outstanding
\nShares, (ii) the quotient obtained by dividing (x) (A) the VP Amount, divided by
\n(B) the Average Veritas Stock Price, by (y) the Outstanding Shares, and (iii)
\nthe ISA Amount.<\/p>\n
(xxviii) “SUBSIDIARY” or “SUBSIDIARIES” means any and all
\ncorporations, limited liability companies, general or limited partnerships,
\njoint ventures, business trusts, associations and other business enterprises and
\nentities controlled by a person directly or indirectly through one or more
\nintermediaries.<\/p>\n
(xxix) “TAX” or “TAXES” has the meaning provided in the
\nStock Purchase Agreement.<\/p>\n
-10-
\n 15<\/p>\n
(xxx) “TRA AMOUNT” means the amount of cash received with
\nrespect to all refunds or the utilization of credits for Seagate Taxes for or
\nattributable to taxable years or periods of Seagate ending on or prior to the
\nEffective Time, or the pre-closing period, in the case of a taxable period
\ncommencing before the Effective Time and ending after the Effective Time, less
\nany administrative charges of the Administrators.<\/p>\n
(xxxi) “TRA RIGHT” means a non-transferable right to
\nreceive, when, as and if received by Veritas or its Affiliates, a stockholder’s
\nPro Rata Portion of the TRA Amount.<\/p>\n
(xxxii)”VERITAS COMMON STOCK” means common stock, par
\nvalue $.001 per share, of Veritas.<\/p>\n
(XXXIII) “VP AMOUNT” means either $0, $500 million or, if
\nSeagate has received gross proceeds in excess of $200,000,000 with respect to
\nthe securities listed in Part B of Schedule I hereto on or prior to the election
\nof the VP Amount, $750 million, at the election of Veritas, which election shall
\nbe made no later than the tenth (10th) day prior to the date of the Seagate
\nStockholders’ Meeting.<\/p>\n
1.12 Dissenting Shares. Shares of Seagate Common Stock which have not
\nbeen voted in favor of the Merger and with respect to which the holder thereof
\nhas exercised and demanded appraisal rights under Delaware Law (“DISSENTING
\nSHARES”) shall not be converted into the Merger Consideration pursuant to the
\nMerger, but shall instead be converted into the right to receive such
\nconsideration as may be determined to be due with respect to such Dissenting
\nShares pursuant to Delaware Law. Seagate agrees that, except with the prior
\nwritten consent of Veritas, or as required under Delaware Law, it will not
\nvoluntarily make any payment with respect to, or settle or offer to settle, any
\nappraisal demand. Each holder of Dissenting Shares (“DISSENTING STOCKHOLDER”)
\nwho, pursuant to the provisions of Delaware Law, becomes entitled to payment of
\nthe fair value for shares of Seagate Common Stock shall receive payment therefor
\nfrom Veritas (but only after the value therefor shall have been agreed upon or
\nfinally determined pursuant to Delaware Law). If, after the Effective Time, any
\nDissenting Shares shall lose their status as Dissenting Shares, Veritas shall
\nissue and deliver, upon surrender by such stockholder of a certificate or
\ncertificates representing shares of Seagate Common Stock pursuant to Section 1.6
\nhereof, the Merger Consideration to which such stockholder would otherwise be
\nentitled under Section 1.5.<\/p>\n
ARTICLE II
\n REPRESENTATIONS AND WARRANTIES OF SEAGATE<\/p>\n
As of the date hereof and as of the Closing Date, Seagate hereby
\nrepresents and warrants to Veritas and Merger Sub, subject to the exceptions and
\nqualifications specifically set forth or disclosed in writing in the disclosure
\nletter delivered by Seagate to Veritas, dated as of the date hereof (the
\n“SEAGATE DISCLOSURE SCHEDULE”), as follows:<\/p>\n
2.1 Organization; Good Standing. Each of Seagate and Seagate Software is
\na corporation duly organized, validly existing and in good standing under the
\nlaws of the State of Delaware, with the corporate power and authority to own,
\nlease and operate its assets and property and to carry on its business as
\npresently being conducted and as proposed to be<\/p>\n
-11-
\n 16<\/p>\n
conducted, and is duly qualified to do business and in good standing as a
\nforeign corporation in each jurisdiction in which the failure to be so qualified
\nor in good standing would reasonably be expected to have a Material Adverse
\nEffect on Seagate.<\/p>\n
2.2 Charter Documents. Seagate has delivered or made available to
\nVeritas a true and correct copy of the Certificate of Incorporation and Bylaws
\nof Seagate and Seagate Software each as amended and in effect as of the date
\nhereof. Neither Seagate nor Seagate Software is in violation of any of the
\nprovisions of its Certificate of Incorporation or Bylaws, each as amended and in
\neffect as of the date hereof.<\/p>\n
2.3 Capital Structure.<\/p>\n
(a) (i) The authorized capital stock of Seagate consists of
\n600,000,000 shares of Common Stock, par value $0.01 per share, of which there
\nwere 226,977,176 shares issued and outstanding as of February 29, 2000, and
\n1,000,000 shares of Preferred Stock, par value $0.01 per share, of which no
\nshares are issued or outstanding. All outstanding shares of Seagate Common Stock
\nare duly authorized and validly issued, fully paid and nonassessable, are not
\nsubject to preemptive rights created by statute, the Certificate of
\nIncorporation or Bylaws of Seagate or any contract, agreement or other
\ncommitment to which Seagate is a party or by which it is bound and have been
\noffered, issued, sold and delivered by Seagate in compliance with all
\nregistration or qualification required (or applicable exemptions therefrom) of
\napplicable federal and State securities laws. As of February 29, 2000, Seagate
\nhad reserved an aggregate of 47,709,220 shares of Seagate Common Stock, net of
\nexercises, for issuance to employees, consultants and non-employee directors
\npursuant to the Seagate Stock Option Plans, under which there were (i)
\noutstanding Seagate Options to purchase an aggregate of 34,415,211 shares of
\nSeagate Common Stock, and (ii) 13,294,009 shares of Seagate Common Stock
\navailable for future grant. All shares of Seagate Common Stock subject to
\nissuance under the Seagate Stock Option Plans, upon issuance in accordance with
\nthe terms and conditions set forth in the instruments pursuant to which such
\nshares of Seagate Common Stock are issuable, would be duly authorized and
\nvalidly issued, fully paid and nonassessable.<\/p>\n
(ii) The authorized capital stock of Seagate Software
\nconsists of 300,000,000 shares of Common Stock, par value $0.01 per share, and
\n73,000,000 shares of Preferred Stock, par value $0.01 per share, all of the
\nissued or outstanding shares of which capital stock are owned by Seagate. All
\noutstanding shares of Seagate Software Common Stock are duly authorized and
\nvalidly issued, fully paid and nonassessable, are not subject to preemptive
\nrights created by statute, the Certificate of Incorporation or Bylaws of Seagate
\nSoftware or any contract, agreement or other commitment to which Seagate
\nSoftware is a party or by which it is bound and have been offered, issued, sold
\nand delivered by Seagate Software in compliance with all registration or
\nqualification required (or applicable exemptions therefrom) of applicable
\nfederal and State securities laws.<\/p>\n
(b) Except as set forth in Section 2.3(a) hereof, there are no
\nequity securities, partnership interests or other similar ownership interests of
\nany class or series of Seagate or Seagate Software, or any securities
\nexchangeable or convertible into, or exercisable for, any such equity
\nsecurities, partnership interests or other similar ownership interests, issued,
\nreserved for issuance or outstanding. Except as set forth in Section 2.3(a)
\nhereof, there are no options,<\/p>\n
-12-
\n 17<\/p>\n
warrants, equity securities, partnership interests or other similar ownership
\ninterests, calls, rights (including preemptive rights), commitments or
\nagreements of any kind or character to which Seagate or Seagate Software is a
\nparty or by which it is bound obligating Seagate or Seagate Software to issue,
\ndeliver or sell, or cause to be issued, delivered or sold, or repurchase, redeem
\nor otherwise acquire, or cause the repurchase, redemption or acquisition, of any
\nshares of capital stock of Seagate or Seagate Software, or obligating Seagate or
\nSeagate Software to grant, extend, accelerate the vesting of, or enter into, any
\nsuch option, warrant, equity security, partnership interest or other similar
\nownership interest, call, right, commitment or agreement. Except as set forth in
\nSection 2.3(b) of the Seagate Disclosure Schedule, there are no registration
\nrights and, to the knowledge of Seagate, there are no voting trusts, proxies or
\nother agreements or understandings, with respect to any capital stock of Seagate
\nor Seagate Software.<\/p>\n
(c) Except for the Designated Assets (as defined in Section 4.1
\nhereof), as of the Closing Date, Seagate will not own or hold, directly or
\nindirectly through one or more subsidiaries, any equity securities, partnership
\ninterests or other similar ownership interests of or in any class or series of
\nany other corporation, limited liability company, general or limited
\npartnership, joint venture, business trust, association or other business entity
\nor enterprise, or any security exchangeable or convertible into, or exercisable
\nfor, any such equity securities, partnership interests or other similar
\nownership interests.<\/p>\n
2.4 Authority. Seagate has all requisite corporate power and authority
\nto enter into this Agreement and the OD Documents, to perform its obligations
\nhereunder and thereunder, and to consummate the transactions contemplated hereby
\nand thereby. The execution and delivery by Seagate of this Agreement and the OD
\nDocuments, the performance by Seagate of its obligations hereunder and
\nthereunder, and the consummation by Seagate of the transactions contemplated
\nhereby and thereby, have been duly authorized by all necessary corporate action
\non the part of Seagate, subject only to the approval and adoption of the
\ntransaction contemplated by the OD Documents and this Agreement and the Merger
\nby Seagate’s stockholders and the filing and recordation of the Certificate of
\nMerger in accordance with Delaware Law and the transactions contemplated by the
\nOD Documents. The affirmative approval of the holders of a majority of the
\noutstanding shares of the Seagate Common Stock is required for Seagate’s
\nstockholders to approve and adopt this Agreement and the Merger under Delaware
\nLaw and the transactions contemplated by the OD Documents. This Agreement and
\nthe OD Documents been duly executed and delivered by Seagate and, assuming the
\ndue authorization, execution and delivery of this Agreement by Veritas and
\nMerger Sub and the OD Documents by the other parties thereto, this Agreement and
\nthe OD Documents constitute the valid and binding obligations of Seagate,
\nenforceable in accordance with their respective terms, subject to (i) the effect
\nof any applicable laws of general application relating to bankruptcy,
\nreorganization, insolvency, moratorium or other similar laws affecting
\ncreditors’ rights and the relief of debtors generally, and (ii) the effect of
\nrules of law and general principles of equity, including, without limitation,
\nrules of law and general principal of equity governing specific performance,
\ninjunctive relief and other equitable remedies (regardless of whether such
\nenforceability is considered in a proceeding in equity or at law).<\/p>\n
2.5 Conflicts. The execution and delivery of this Agreement and the OD
\nDocuments by Seagate do not, and the performance by Seagate of its obligations
\nhereunder and thereunder and the consummation by Seagate of the transactions
\ncontemplated hereby and thereby will not,<\/p>\n
-13-
\n 18<\/p>\n
(i) conflict with or violate the Certificate of Incorporation or Bylaws of
\nSeagate, each as amended and in effect as of the date hereof, (ii) subject to
\nobtaining the consents, approvals, orders or authorizations, and making the
\nregistrations, declarations or filings, set forth in Section 2.6 hereof,
\nconflict with or violate any law, rule, regulation, order, judgment or decree
\napplicable to Seagate or by which Seagate or its assets and properties are bound
\nor affected, or (iii) result in any breach of, or constitute a default (or an
\nevent that with notice or lapse of time or both would become a default) under,
\nor impair Seagate’s rights or alter the rights or obligations of any third party
\nunder, or give to any third party any rights of termination, amendment,
\nacceleration or cancellation of, or result in the creation of a Lien on any of
\nthe assets or properties of Seagate pursuant to, any material note, bond,
\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or
\nother instrument or obligation to which Seagate is a party or by which Seagate
\nor its assets and properties are bound or affected, except to the extent such
\nconflict, violation, breach, default, impairment or other effect would not, in
\nthe case of clause (ii) or (iii) of this Section 2.5, individually or in the
\naggregate, (a) reasonably be expected to have a Material Adverse Effect, or (b)
\nreasonably be expected to have a material adverse effect on, or materially
\ndelay, the ability of Veritas or Seagate to consummate the transactions
\ncontemplated hereby or on Seagate’s ability to consummate the transactions
\ncontemplated by the OD Documents.<\/p>\n
2.6 Consents. Except as set forth in the Seagate Disclosure Statement,
\nno material consent, approval, order or authorization of, or registration,
\ndeclaration or filing with, any Governmental Entity is required by or with
\nrespect to Seagate in connection with the execution and delivery of this
\nAgreement or the OD Documents by Seagate, or the performance by Seagate of its
\nobligations hereunder or thereunder or the consummation by Seagate of the
\ntransactions contemplated hereby or thereby, except for (i) the filing and
\neffectiveness of the Registration Statement (as defined in Section 5.1 hereof)
\nwith the United States Securities and Exchange Commission (the “SEC”) in
\naccordance with the Securities Act of 1933, as amended (the “SECURITIES ACT”),
\n(ii) the filing of the Certificate of Merger with the Secretary of State of the
\nState of Delaware, (iii) the filing of the Proxy Statement (as defined in
\nSection 5.1 hereof) with the SEC in accordance with the Securities Exchange Act
\nof 1934, as amended (the “EXCHANGE ACT”), (iv) such consents, approvals, orders,
\nauthorizations, registrations, declarations and filings as may be required under
\napplicable federal and state “blue sky” securities laws and the
\nHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR
\nACT”), and the equivalent laws of any foreign country, and (v) such other
\nconsents, approvals, orders, authorizations, registrations, declarations and
\nfilings which, if not obtained or made, would not have a material adverse effect
\non the ability of Veritas and Seagate to consummate the Merger and the other
\ntransactions contemplated hereby or by the OD Documents.<\/p>\n
2.7 SEC Filings; Financial Statements. Seagate has filed all forms,
\nreports and documents required to be filed with the SEC since July 3, 1998, and
\nhas made available (through on-line databases) to Veritas such forms, reports
\nand documents in the form filed with the SEC. All such required forms, reports
\nand documents (including all exhibits and schedules thereto and all documents
\nincorporated by reference therein) are referred to herein as the “SEAGATE SEC
\nREPORTS.” As of their respective dates, the Seagate SEC Reports (i) complied in
\nall material respects with the applicable requirements of the Securities Act or
\nthe Exchange Act, and the rules and regulations of the SEC promulgated
\nthereunder, and (ii) did not at the time each such<\/p>\n
-14-
\n 19<\/p>\n
Seagate SEC Report was filed (or if amended or superseded by a filing prior to
\nthe date of this Agreement, then on the date of such filing) contain any untrue
\nstatement of a material fact or omit to state a material fact required to be
\nstated therein or necessary in order to make the statements therein, in the
\nlight of the circumstances under which they were made, not misleading. None of
\nthe Subsidiaries of Seagate is required to file any forms, reports or other
\ndocuments with the SEC. Except to the extent revised or superseded by a
\nsubsequent filing with the SEC (a copy of which has been made available to
\nVeritas prior to the date of this Agreement), none of the Seagate SEC Reports
\nfiled by Seagate since July 3, 1999 and prior to the date of this Agreement
\n(collectively, the “RECENT SEC REPORTS”) contains any untrue statement of a
\nmaterial fact or omits to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in the light of the
\ncircumstances under which they were made, not misleading. The consolidated
\nfinancial statements of Seagate included in all Seagate SEC Reports comply as to
\nform in all material respects with applicable accounting requirements and the
\npublished rules and regulations of the SEC with respect thereto, have been
\nprepared in accordance with GAAP (except, in the case of unaudited consolidated
\nquarterly statements, as permitted by Form 10-Q of the SEC) applied on a
\nconsistent basis during the periods involved (except as may be indicated in the
\nnotes thereto) and fairly present the consolidated financial position of Seagate
\nand its consolidated Subsidiaries as of the dates thereof and the consolidated
\nfinancial position of Seagate and its consolidated Subsidiaries as of the dates
\nthereof and the consolidated results of their operations and cash flows for the
\nperiods then ended (subject, in the case of unaudited quarterly statements, to
\nnormal year-end audit adjustments). Except as reflected in the most recent
\nconsolidated balance sheet of Seagate included in the Recent SEC Reports most
\nrecently filed by Seagate with the SEC prior to the date hereof (such
\nconsolidated balance sheet being referred to herein as the “CURRENT SEAGATE
\nBALANCE SHEET” and the date thereof being referred to herein as the “CURRENT
\nBALANCE SHEET DATE”), as of the Current Balance Sheet Date, neither Seagate nor
\nany of its Subsidiaries had, and since such date neither Seagate nor any of such
\nSubsidiaries has incurred, any Liabilities or obligations of any nature (whether
\naccrued, absolute, contingent or otherwise) which, individually or in the
\naggregate, would reasonably be expected to have a Material Adverse Effect.<\/p>\n
2.8 Liabilities. Except as identified on the Seagate Disclosure
\nSchedule, as of the Effective Time, Seagate will not have any material
\nLiabilities or other obligations of any nature whatsoever (absolute, accrued,
\ncontingent or otherwise) other than (i) Designated Liabilities and (ii)
\nLiabilities for which Veritas is entitled to indemnification under the
\nIndemnification Agreement.<\/p>\n
2.9 Absence of Material Adverse Effect on Seagate. Since the date of the
\nCurrent Seagate Balance Sheet, there has not been, occurred or arisen any
\nMaterial Adverse Effect on Seagate.<\/p>\n
2.10 Compliance. Seagate is not in conflict in any material respect
\nwith, or in material default or violation of, (i) any law, rule, regulation,
\norder, judgment or decree applicable to Seagate or by which Seagate or its
\nassets and properties are bound or affected, or (ii) any material note, bond,
\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or
\nother instrument or obligation to which Seagate is a party or by which Seagate
\nor its assets and properties are bound or affected. No investigation or review
\nby any Governmental Entity is<\/p>\n
-15-
\n 20<\/p>\n
pending or, to the knowledge of Seagate, threatened, against Seagate, nor has
\nany Governmental Entity indicated an intention to conduct the same. There is no
\nmaterial agreement, judgment, injunction, order or decree binding upon Seagate
\nor any of assets and properties which has had, or would reasonably be expected
\nto have, the effect of prohibiting or materially impairing the consummation of
\nthe Merger, or the other transactions contemplated hereby or by the OD
\nDocuments.<\/p>\n
2.11 Permits. Seagate holds all permits, licenses, variances,
\nexemptions, orders and approvals from Governmental Entities which are material
\nto the operation of the business of Seagate, and Seagate is in compliance in all
\nmaterial respects with the terms of such permits, licenses, variances,
\nexemptions, orders and approvals.<\/p>\n
2.12 Litigation. As of the date of this Agreement, there is no action,
\nsuit, proceeding, claim, arbitration or investigation pending, or as to which
\nSeagate has received any notice of assertion nor, to the knowledge of Seagate,
\nis there any threatened action, suit, proceeding, claim, arbitration or
\ninvestigation against Seagate, which in any case would reasonably be expected to
\nhave a Material Adverse Effect on Seagate.<\/p>\n
2.13 Brokers’ and Finders’ Fees. Except for fees payable to Morgan
\nStanley & Co., Incorporated, Seagate has not incurred, nor will it incur,
\ndirectly or indirectly, any liability for any brokerage or finders’ fees or
\nagents’ commissions or any similar charges in connection with the Merger or the
\nother transactions contemplated hereby or by the OD Documents.<\/p>\n
2.14 Absence of Liens and Encumbrances. Except as disclosed on Section
\n2.14 of the Seagate Disclosure Schedule, Seagate and Seagate Software Holdings,
\nInc. have good and valid title to all of their assets and properties that will
\nnot be sold or otherwise disposed of pursuant to the OD Documents including,
\nwithout limitation, their shares of Veritas, Gadzoox, Dragon, CVCI and SanDisk,
\nand such assets and properties at the Effective Time will be free and clear of
\nany liens, encumbrances or financial commitments, except for liens for taxes not
\nyet due and payable and as otherwise reflected in the Seagate SEC Reports.<\/p>\n
2.15 Statements; Registration Statement; Proxy Statement\/Prospectus.
\nNone of the information supplied or to be supplied by Seagate for inclusion or
\nincorporation by reference in (i) the Registration Statement (as defined in
\nSection 5.1 hereof) will, at the time it is declared or ordered effective under
\nthe Securities Act, contain any untrue statement of a material fact or omit to
\nstate any material fact required to be stated therein or necessary in order to
\nmake the statements therein, in light of the circumstances under which they were
\nmade, not misleading, or (ii) the Proxy Statement (as defined in Section 5.1
\nhereof) will, on the date the Proxy Statement is first mailed to the
\nstockholders of Seagate, at the time of the Seagate Stockholders’ Meeting (as
\ndefined in Section 5.1 hereof), at the time of the Veritas Stockholders’ Meeting
\nand at the Effective Time, contain any untrue statement of a material fact or
\nomit to state any material fact required to be stated therein or necessary in
\norder to make the statements therein, in light of the circumstances under which
\nthey are made, not misleading, or omit to state any material fact necessary to
\ncorrect any statement in any earlier communication with respect to the
\nsolicitation of proxies for the Seagate Stockholders’ Meeting or the Veritas
\nStockholders’ Meeting which has become false or misleading. The Proxy Statement
\nwill comply as to form in all material respects with the provisions of the
\nExchange Act and the rules and regulations promulgated<\/p>\n
-16-
\n 21<\/p>\n
thereunder. Notwithstanding the foregoing or anything to contrary set forth in
\nthis Agreement, Seagate makes no representation or warranty with respect to any
\ninformation supplied by Veritas or Merger Sub which is contained in any of the
\nforegoing documents.<\/p>\n
2.16 Board Approval. The Board of Directors of Seagate has (i)
\ndetermined that the Merger and the other transactions contemplated hereby and by
\nthe OD Documents are fair to, advisable and in the best interests of Seagate and
\nits stockholders, (ii) duly approved the Merger, this Agreement, the OD
\nDocuments and the other transactions contemplated hereby and thereby, and (iii)
\ndetermined to recommend that the stockholders of Seagate approve the Merger,
\nthis Agreement, the OD Documents and the other transactions contemplated hereby
\nand thereby.<\/p>\n
2.17 State Takeover Statutes. The Board of Directors of Seagate has
\napproved the Merger, this Agreement, and the other transactions contemplated
\nhereby and thereby, and such approval is sufficient to render inapplicable to
\nthe Merger, this Agreement, the OD Documents and the other transactions
\ncontemplated hereby and thereby the provisions of Section 203 of Delaware Law to
\nthe extent, if any, such provisions are applicable to the Merger, this
\nAgreement, the OD Documents and the other transactions contemplated hereby and
\nthereby. No other state takeover statute or similar statute or regulation
\napplies to or purports to apply to the Merger, this Agreement, the OD Documents
\nor the other transactions contemplated hereby and thereby.<\/p>\n
2.18 Fairness Opinion. Seagate has received a written opinion from
\nMorgan Stanley & Co. Incorporated dated as of the date hereof, to the effect
\nthat, as of the date hereof, the Merger Consideration is fair to the
\nstockholders of Seagate from a financial point of view and will deliver to
\nVeritas a copy of such opinion.<\/p>\n
2.19 Veritas Common Stock. All of the Veritas Common Stock held directly
\nor indirectly by Seagate is owned, beneficially and of record, by Seagate
\nSoftware, and has been held continuously by Seagate Software since May 28, 1999.<\/p>\n
2.20 Intercompany Transactions. At no time has Seagate, Seagate Software
\nor any member of an affiliated group of corporations as defined in Section 1504
\nof the Code filing returns on a consolidated basis of which Seagate or Seagate
\nSoftware is a member engaged in an intercompany transaction with respect to the
\nVeritas Common Stock giving rise to an intercompany item or corresponding item
\nwithin the meaning of Section 1.1502-13 of the United States Income Tax
\nRegulations with respect to the Veritas Common Stock, including but not limited
\nto such items that may be subject to gain recognition upon the application of
\nSection 1.1502-13(f)(4) of the United States Income Tax Regulations.<\/p>\n
2.21 Taxes. Each of Seagate and its Subsidiaries has filed all Tax
\nReturns required to be filed by any of them and has paid (or Seagate has paid on
\nits behalf), or has set up an adequate reserve for the payment of, all Taxes
\nrequired to be paid in respect of the periods covered by such returns (except
\nwhere the failure to pay would not have a Material Adverse Effect on Seagate).
\nThe information contained in such Tax Returns is true, complete and accurate in
\nall material respects except where the failure to be so would not have a
\nMaterial<\/p>\n
-17-
\n 22<\/p>\n
Adverse Effect on Seagate. Neither Seagate nor any subsidiary of Seagate is
\ndelinquent in the payment of any tax, assessment or governmental charge except
\nwhere the delinquency would not have a Material Adverse Effect on Seagate. No
\ndeficiencies for any taxes have been proposed, asserted or assessed against
\nSeagate or any of its subsidiaries that have not been finally settled or paid in
\nfull which would have a Material Adverse Effect on Seagate, and no requests for
\nwaivers of the time to assess any such tax are pending.<\/p>\n
2.22 Code Section 897 Company . Seagate is not and has not been during
\nthe period referred to in section 897(c)(1)(A)(ii) a United States real property
\nholding corporation within the meaning of section 897(c)(2) of the Code.<\/p>\n
ARTICLE III
\n REPRESENTATIONS AND WARRANTIES OF VERITAS AND MERGER SUB<\/p>\n
As of the date hereof and as of the Closing Date, Veritas and Merger Sub
\nhereby jointly and severally represent and warrant to Seagate, subject to the
\nexceptions and qualifications specifically set forth or disclosed in writing in
\nthe disclosure letter delivered by Veritas to Seagate, dated as of the date
\nhereof (the “VERITAS DISCLOSURE SCHEDULE”), as follows:<\/p>\n
3.1 Organization; Good Standing. Veritas and each of its material
\nsubsidiaries is a corporation duly organized, validly existing and in good
\nstanding under the laws of the respective jurisdiction of its incorporation,
\nwith the corporate power and authority to own, lease and operate its respective
\nassets and property and to carry on its respective business as now being
\nconducted and as proposed to be conducted, and is duly qualified to do business
\nand in good standing as a foreign corporation in each jurisdiction in which the
\nfailure to be so qualified would reasonably be expected to have a Material
\nAdverse Effect on Veritas.<\/p>\n
3.2 Charter Documents. Veritas has delivered or made available to
\nSeagate a true and correct copy of the Certificate of Incorporation and Bylaws
\nof Veritas, as amended and in effect as of the date hereof. Neither Veritas nor
\nany of its material subsidiaries is in violation of any of the provisions of its
\nCertificate of Incorporation or Bylaws or equivalent organizational documents,
\nin each case as amended and in effect as of the date hereof.<\/p>\n
3.3 Capital Structure. The authorized capital stock of Veritas consists
\nof 500,000,000 shares of Common Stock, par value $0.001 per share, of which
\nthere were 396,532,084 shares issued and outstanding as of March 24, 2000,
\n10,000,000 shares of Preferred Stock, par value $0.001 per share, of which no
\nshares are issued or outstanding, and one share of the special voting stock, par
\nvalue $0.001 per share. The authorized capital stock of Merger Sub consists of
\n1,000 shares of common stock, par value $0.01 per share, of which, as of the
\ndate hereof, 100 shares are issued and outstanding. All outstanding shares of
\nVeritas Common Stock and Merger Sub’s capital stock are duly authorized and
\nvalidly issued, fully paid and non-assessable, and are not subject to preemptive
\nrights created by statute, the Certificate of Incorporation or Bylaws of Veritas
\nor any contract, agreement or other commitment to which Veritas is a party or by
\nwhich it is bound. All outstanding shares of capital stock of Merger Sub have
\nbeen issued and granted in compliance with all applicable securities and other
\nlaws.<\/p>\n
3.4 Authority. Each of Veritas and Merger Sub has all requisite
\ncorporate power and authority to enter into this Agreement, to perform its
\nobligations hereunder, and to consummate the transactions contemplated hereby.
\nThe execution and delivery by Veritas and Merger Sub of<\/p>\n
-18-
\n 23<\/p>\n
this Agreement, the performance by Veritas and Merger Sub of the transactions
\ncontemplated hereby, and the consummation by Veritas and Merger Sub of the
\ntransactions contemplated hereby, have been duly authorized by all necessary
\ncorporate action on the part of Veritas and Merger Sub, subject only to the
\napproval of the Merger and, to the extent not previously authorized, the Share
\nIncrease by Veritas’ stockholders and the filing of an amendment to the
\nCertificate of Incorporation of Venus with respect to the Share Increase and the
\nCertificate of Merger in accordance with Delaware Law. The approval of the
\nholders of a majority of the outstanding shares of Veritas Common Stock is
\nrequired to approve the Merger and the Share Increase. This Agreement has been
\nduly executed and delivered by Veritas and Merger Sub and, assuming the due
\nauthorization, execution and delivery of this Agreement by Seagate, this
\nAgreement constitutes the valid and binding obligations of Veritas and Merger
\nSub, enforceable in accordance with their respective terms, subject to (i) the
\neffect of any applicable laws of general application relating to bankruptcy,
\nreorganization, insolvency, moratorium or other similar laws affecting
\ncreditors’ rights and the relief of debtors generally, and (ii) the effect of
\nrules of law and general principles of equity, including, without limitation,
\nrules of law and general principal of equity governing specific performance,
\ninjunctive relief and other equitable remedies (regardless of whether such
\nenforceability is considered in a proceeding in equity or at law).<\/p>\n
3.5 Conflicts. The execution and delivery of this Agreement by Veritas
\nand Merger Sub do not, and the performance by Veritas and Merger Sub of their
\nobligations hereunder and the consummation by Veritas and Merger Sub of the
\ntransactions contemplated hereby will not, (i) conflict with or violate the
\nCertificate of Incorporation or Bylaws of Veritas and Merger Sub, (ii) subject
\nto obtaining the consents, approvals, orders and authorizations, and making the
\nregistrations, recordations and filings, set forth in Section 3.6 hereof,
\nconflict with or violate any law, rule, regulation, order, judgment or decree
\napplicable to Veritas and Merger Sub or by which Veritas or Merger Sub or their
\nassets and properties are bound or affected, or (iii) result in any breach of,
\nor constitute a default (or an event that with notice or lapse of time or both
\nwould become a default) under, or impair Veritas’ or Merger Sub’s rights or
\nalter the rights or obligations of any third party under, or give to any third
\nparties any rights of termination, amendment, acceleration or cancellation of,
\nor result in the creation of a Lien on any of the assets or properties of
\nVeritas or Merger Sub pursuant to, any material note, bond, mortgage, indenture,
\ncontract, agreement, lease, license, permit, franchise or other instrument or
\nobligation to which Veritas or Merger Sub is a party or by which Veritas or
\nMerger Sub or either of their assets and properties are bound or affected,
\nexcept to the extent such conflict, violation, breach, default, impairment or
\nother effect would not, in the case of clause (ii) or (iii) of this Section 3.5,
\nindividually or in the aggregate, reasonably be expected to have a Material
\nAdverse Effect on Veritas.<\/p>\n
3.6 Consents. Except as set forth in the Veritas Disclosure Schedule, no
\nmaterial consent, approval, order or authorization of, or registration,
\ndeclaration or filing with any Governmental Entity is required by or with
\nrespect to Veritas in connection with the execution and delivery of this
\nAgreement or the performance by Veritas of its obligations hereunder or the
\nconsummation of the transactions contemplated hereby, except for (i) the filing
\nof a Registration Statement with the SEC in accordance with the Securities Act,
\n(ii) the filing of the Certificate of Merger with the Secretary of State of the
\nState of Delaware, (iii) the filing of the Proxy<\/p>\n
-19-
\n 24
\nStatement with the SEC in accordance with the Exchange Act, (iv) such consents,
\napprovals, orders, authorizations, registrations, declarations and filings as
\nmay be required under applicable federal and state “blue sky” securities laws
\nand the HSR Act and the antitrust or competition laws of any foreign country,
\nand (v) such other consents, authorizations, filings, approvals and
\nregistrations which, if not obtained or made, would not be material to Veritas
\nor Merger Sub or have a material adverse effect on the ability of Veritas,
\nMerger Sub and Seagate to consummate the Merger and the other transactions
\ncontemplated hereby.<\/p>\n
3.7 SEC Filings; Veritas Financial Statements.<\/p>\n
(a) Veritas has filed all forms, reports and documents required
\nto be filed with the SEC since December 31, 1998, and has made a copy of all
\nsuch forms, reports and documents available to Seagate. All such forms, reports
\nand documents (including those that Veritas may file subsequent to the date
\nhereof) are referred to herein as the “VERITAS SEC REPORTS.” As of their
\nrespective dates, the Veritas SEC Reports (i) were or will be (as the case may
\nbe) prepared in accordance with the requirements of the Securities Act or the
\nExchange Act, as the case may be, and the rules and regulations of the SEC
\npromulgated thereunder, and (ii) did not or will not (as the case may be) at the
\ntime they were filed (or if amended or superseded, then on the date of filing of
\nsuch amendment or superseding form, report or document) contain any untrue
\nstatement of a material fact or omit to state a material fact required to be
\nstated therein or necessary in order to make the statements therein, in the
\nlight of the circumstances under which they were made, not misleading.<\/p>\n
(b) Each of the consolidated financial statements (including, in
\neach case, any related notes thereto) contained in the Veritas SEC Reports (the
\n“VERITAS FINANCIALS”), including any Veritas SEC Reports filed after the date
\nhereof until the Closing, (i) complied or will comply (as the case may be) as to
\nform in all material respects with the published rules and regulations of the
\nSEC with respect thereto, (ii) was prepared or will be prepared (as the case may
\nbe) in accordance with GAAP applied on a consistent basis throughout the periods
\ninvolved (except as may be indicated in the notes thereto or, in the case of
\nunaudited interim financial statements, as may be permitted by the SEC on Form
\n10-Q under the Exchange Act), and (iii) fairly presented or will fairly present
\n(as the case may be) in all material respects the consolidated financial
\nposition of Veritas and its subsidiaries at the respective dates thereof and the
\nconsolidated results of its operations and cash flows for the periods indicated,
\nexcept that the unaudited interim financial statements were or are subject to
\nnormal and recurring year-end adjustments which were not, or are not expected to
\nbe, material in amount. The balance sheet of Veritas as of December 31, 1998
\ncontained in the Veritas SEC Reports is hereinafter referred to as the “VERITAS
\nBALANCE SHEET.”<\/p>\n
(c) Veritas has heretofore furnished to Seagate a complete and
\ncorrect copy of any amendments or modifications, which have not yet been filed
\nwith the SEC but which are required to be filed, to agreements, documents or
\nother instruments which previously had been filed by Veritas with the SEC
\npursuant to the Securities Act or the Exchange Act.<\/p>\n
3.8 Absence of Certain Changes or Events. Since the date of the Veritas
\nBalance Sheet, there has not been, occurred or arisen any Material Adverse
\nEffect on Veritas.<\/p>\n
-20-
\n 25<\/p>\n
3.9 Litigation. There is no action, suit, proceeding, claim,
\narbitration or investigation pending, or as to which Veritas or any of its
\nsubsidiaries has received any written notice of assertion nor, to the knowledge
\nof Veritas, is there any threatened action, suit, proceeding, claim, arbitration
\nor investigation against Veritas or any of its subsidiaries, which in any case
\nwould reasonably would be expected to have a Material Adverse Effect on Veritas.<\/p>\n
3.10 Brokers’ and Finders’ Fees. Except for fees payable to Credit
\nSuisse First Boston Corporation, Veritas has not incurred, nor will it incur,
\ndirectly or indirectly, any liability for brokerage or finders’ fees or agents’
\ncommissions or any similar charges in connection with the Merger or the other
\ntransactions contemplated hereby.<\/p>\n
3.11 Statements; Registration Statement; Proxy Statement\/Prospectus.
\nNone of the information supplied or to be supplied by Veritas for inclusion or
\nincorporation by reference in (i) the Registration Statement (as defined in
\nSection 5.1 hereof) will at the time it becomes effective under the Securities
\nAct, contain any untrue statement of a material fact or omit to state any
\nmaterial fact required to be stated therein or necessary in order to make the
\nstatements therein, in light of the circumstances under which they were made,
\nnot misleading, and (ii) the Proxy Statement (as defined in Section 5.1 hereof)
\nshall not, on the date the Proxy Statement is first mailed to each of Seagate’s
\nstockholders and Veritas’ stockholders, at the times of the Seagate
\nStockholder’s Meeting (as defined in Section 5.1 hereof) and the Veritas
\nStockholders’ Meeting and at the Effective Time, contain any untrue statement of
\na material fact or omit to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in light of the
\ncircumstances under which they are made, not false or misleading, or omit to
\nstate any material fact necessary to correct any statement in any earlier
\ncommunication with respect to the solicitation of proxies for the Seagate
\nStockholders’ Meeting or Veritas Stockholders’ Meeting which has become false or
\nmisleading. Notwithstanding the foregoing or anything else to the contrary set
\nforth in this Agreement, Veritas makes no representation or warranty with
\nrespect to any information supplied by Seagate which is contained in any of the
\nforegoing documents.<\/p>\n
3.12 Board Approval. The Board of Directors of Veritas has (i)
\ndetermined that the Merger and the other transactions contemplated hereby are
\nadvisable and in the best interests of Veritas and its stockholders, (ii) duly
\napproved the Merger, this Agreement and the other transactions contemplated
\nhereby, and (iii) resolved to recommend that the Stockholders of Veritas approve
\nthe Share Increase.<\/p>\n
3.13 Fairness Opinion. Veritas has received a written opinion from
\nCredit Suisse First Boston Corporation, dated as of the date hereof, to the
\neffect that, as of the date hereof, the Stock Portion to be paid by Veritas is
\nfair to Veritas from a financial point of view and will deliver to Seagate a
\ncopy of such opinion.<\/p>\n
3.14 Merger Sub Operations. Merger Sub was formed solely for the purpose
\nof engaging in the transactions contemplated hereby and has not (a) engaged in
\nany business activities, (b) conducted any operations other than in connection
\nwith the transactions contemplated hereby or (c) incurred any Liabilities other
\nthan in connection with the transactions contemplated hereby.<\/p>\n
-21-
\n 26<\/p>\n
ARTICLE IV
\n CONDUCT OF BUSINESS AND OTHER TRANSACTIONS<\/p>\n
4.1 Conduct of Business. On or before the Effective Time, Seagate and
\nSeagate Software shall take all actions necessary to transfer all of their
\nrespective assets and Liabilities to one or more of Seagate’s Subsidiaries such
\nthat at the Effective Time the only assets and properties owned or held by
\nSeagate (the “DESIGNATED ASSETS”) and the only Liabilities not assumed by such
\nother Subsidiaries shall be Designated Liabilities; provided, however, that
\nprior to the Effective Time, Seagate may sell, transfer or otherwise dispose of
\nany of the Designated Assets set forth on Part B of Schedule I hereto. From and
\nafter the execution and delivery of this Agreement until the earlier of the
\nEffective Time or the termination of this Agreement, Seagate shall not sell,
\ntransfer or otherwise dispose of any shares of Veritas Common Stock owned by
\nSeagate as of the date hereof.<\/p>\n
4.2 No Amendment to OD Documents. From the date hereof until the earlier
\nto occur of the Effective Time or the termination of this Agreement pursuant to
\nand in accordance with Section 7.1 hereof, neither Seagate nor Seagate Software
\nshall terminate, amend, modify or otherwise supplement or waive any of the terms
\nand conditions of the OD Documents (or any of them); provided, however, that
\nnotwithstanding the foregoing, Seagate may terminate the OD Documents pursuant
\nto their respective terms.<\/p>\n
4.3 Waivers and Releases. Seagate shall use its best efforts to obtain
\nand to deliver to Veritas, as soon as practicable after the date hereof and in
\nany event at least 15 days prior to the Effective Time, (i) with respect to each
\nindividual who will be a holder of Rolled Options, a waiver and release of
\nclaims in favor of Veritas and Seagate in form and in substance reasonably
\nsatisfactory to Veritas (a “PROPER WAIVER”), with respect to the cancellation of
\nRolled Options held by such individual described in Section 1.5(c) hereof, and
\n(ii) with respect to each individual who is a party to any employment, severance
\nor change in control or similar agreement, or who participates in any plan
\nproviding severance or change in control benefits, a Proper Waiver with respect
\nto any claims which any such individual may have against Veritas and\/or Seagate
\nwith respect to any such agreements or plans.<\/p>\n
ARTICLE V
\n ADDITIONAL AGREEMENTS<\/p>\n
5.1 Proxy Statement\/Prospectus; Registration Statement; Other Filings.<\/p>\n
(a) As promptly as practicable following the execution and
\ndelivery of this Agreement, Seagate and Veritas shall prepare and file with the
\nSEC a joint proxy statement\/prospectus to be sent to the stockholders of Seagate
\nand Veritas in connection with the meeting of Seagate’s stockholders to consider
\nthe approval and adoption of this Agreement and the Merger (the “SEAGATE
\nSTOCKHOLDERS’ MEETING”) and the meeting of Veritas Stockholders to consider
\napproval of the Merger and the Share Increase (the “VERITAS STOCKHOLDERS’
\nMEETING”) (such proxy statement\/prospectus, as amended or supplemented, being
\nreferred to herein as the “PROXY STATEMENT”), and Veritas shall prepare and file
\nwith the SEC a registration statement on Form S-4 (the “REGISTRATION STATEMENT”)
\nin which the Proxy Statement will be included as a prospectus. Each of Seagate
\nand Veritas shall promptly respond to any comments of the SEC<\/p>\n
-22-
\n 27<\/p>\n
with respect to the Registration Statement or the Proxy Statement, shall use its
\nrespective commercially reasonable efforts to have the Registration Statement
\ndeclared effective under the Securities Act as promptly as practicable after
\nsuch filing and, in the case of Seagate, shall cause the Proxy Statement to be
\nmailed to the stockholders of Seagate at the earliest practicable time. As
\npromptly as practicable after the execution and delivery of this Agreement,
\nSeagate and Veritas shall prepare and file any other filings required under the
\nExchange Act, the Securities Act or any other federal, foreign or state “blue
\nsky” securities laws relating to the Merger and the other transactions
\ncontemplated hereby (collectively, the “OTHER FILINGS”). Each of Seagate and
\nVeritas shall notify the other promptly upon the receipt of any comments from
\nthe SEC or its staff, and of any request by the SEC or its staff or any other
\ngovernment officials for amendments or supplements to the Registration
\nStatement, the Proxy Statement or any Other Filing, or for additional
\ninformation, and shall supply the other with copies of all correspondence
\nbetween such party or any of its agents or representatives, on the one hand, and
\nthe SEC, or its staff or any other government officials, on the other hand, with
\nrespect to the Registration Statement, the Proxy Statement, or any Other Filing.
\nThe Registration Statement, the Proxy Statement and the Other Filings shall
\ncomply in all material respects with all applicable requirements of law and the
\nrules and regulations promulgated thereunder. Whenever any event occurs which is
\nrequired to be set forth in an amendment or supplement to the Registration
\nStatement, the Proxy Statement or any Other Filing, Seagate or Veritas, as the
\ncase may be, shall promptly inform the other of such event, and cooperate in
\nfiling with the SEC or its staff or any other government officials, and\/or
\nmailing to stockholders of Seagate, such amendment or supplement.<\/p>\n
(b) Subject to the terms of Section 5.2(c) hereof, the Proxy
\nStatement shall include the recommendation of the Board of Directors of Seagate
\nin favor of adoption and approval of this Agreement and the Merger. The Proxy
\nStatement shall also include the recommendation of the Board of Directors of
\nVeritas in favor of approval of the Share Increase and the Merger.<\/p>\n
5.2 Stockholder Meetings.<\/p>\n
(a) Subject to the terms of Section 5.2(c) hereof, promptly after
\nthe date hereof and in consultation with Veritas, Seagate shall take all action
\nnecessary in accordance with Delaware Law and its Certificate of Incorporation
\nand Bylaws to convene the Seagate Stockholders’ Meeting and Veritas shall call
\nthe Veritas Stockholders’ Meeting, to be held as promptly as practicable, for
\nthe purpose of voting upon (i) this Agreement, the Merger and the transactions
\ncontemplated under the OD Documents, (ii) the Merger and (iii) if necessary, the
\nShare Increase, as the case may be. Seagate and Veritas shall use all reasonable
\nefforts to hold the Veritas Stockholders’ Meeting and the Seagate Stockholders’
\nMeeting on the same day and as soon as practicable after the date on which the
\nRegistration Statement becomes effective. Nothing herein shall prevent Seagate
\nor Veritas from adjourning or postponing the Seagate Stockholders’ Meeting or
\nthe Veritas Stockholders’ Meeting, as the case may be, to the extent necessary
\nto ensure that any necessary supplement or amendment to the Proxy Statement is
\nprovided to the stockholders of Veritas and Seagate in advance of a vote
\nrelevant to the Merger and this Agreement. Subject to the terms of Section
\n5.2(c) hereof, Seagate and Veritas shall each use its commercially reasonable
\nefforts to solicit proxies from its stockholders in favor of the adoption and
\napproval of the items in clauses (i) and (ii) of the preceding sentence, as
\nrelevant,<\/p>\n
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\n 28<\/p>\n
and shall take all other action necessary or advisable to secure the vote or
\nconsent of its stockholders required by the rules of the National Association of
\nSecurities Dealers, Inc., Delaware Law, The New York Stock Exchange, Inc. and
\nall other applicable legal requirements to obtain such approval.<\/p>\n
(b) Subject to the terms of Section 5.2(c) hereof: (i) the Board
\nof Directors of Seagate shall recommend that Seagate’s stockholders vote in
\nfavor of and adopt and approve this Agreement and the Merger and the
\ntransactions contemplated under the OD Documents at the Seagate Stockholders’
\nMeeting; (ii) the Proxy Statement shall include a statement to the effect that
\nthe Board of Directors of Seagate has recommended that Seagate’s stockholders
\nvote in favor of and adopt and approve this Agreement and the Merger and the
\ntransactions contemplated under the OD Documents at the Seagate Stockholders’
\nMeeting, (iii) neither the Board of Directors of Seagate nor any committee
\nthereof shall withdraw, amend or modify, or propose or resolve to withdraw,
\namend or modify in a manner adverse to Veritas, the recommendation of the Board
\nof Directors of Seagate that the stockholders of Seagate vote in favor of and
\nadopt and approve this Agreement and the Merger, and, unless this Agreement
\nshall have been terminated, Seagate shall cause Seagate Software to vote the
\nshares of Veritas Common Stock it holds in favor of the Share Increase and the
\nMerger.<\/p>\n
(c) Notwithstanding the foregoing or anything to the contrary set
\nforth in this Agreement, nothing in this Agreement shall prevent the Board of
\nDirectors of Seagate from withdrawing, amending or modifying its recommendation
\nin favor of this Agreement and the Merger (i) Seagate receives a Seagate
\nSuperior Offer (as defined below) and such Seagate Superior Offer is not
\nwithdrawn, (ii) neither Seagate nor any of its agents or representatives has
\nviolated any of the restrictions set forth in Section 5.4(a) hereof, and (iii)
\nthe Board of Directors of Seagate concludes in good faith, after consultation
\nwith its outside counsel, that, in light of such Seagate Superior Offer, the
\nwithholding, withdrawal, amendment or modification of such recommendation is
\nnecessary in order for the Board of Directors of Seagate to comply with its
\nfiduciary obligations to the stockholders of Seagate under applicable law. For
\nall purposes of and under this Agreement, the term “SEAGATE SUPERIOR OFFER”
\nshall mean a bona fide written offer made by a third party to consummate any of
\nthe following transactions: (a) a merger, consolidation, business combination,
\nrecapitalization, liquidation, dissolution or similar transaction involving
\nSeagate, pursuant to which the stockholders of Seagate immediately preceding the
\nconsummation of such transaction would hold less than fifty percent (50%) of the
\nequity interest in the surviving or resulting entity of such transaction (or the
\nultimate parent entity thereof); (b) a sale or other disposition by Seagate of
\nassets and properties (excluding inventory and used equipment sold in the
\nordinary course of business) representing more than fifty percent (50%) of
\nSeagate’s assets immediately prior to such sale or other disposition, or (c) the
\nacquisition by any person or group (including by way of a tender offer or an
\nexchange offer or issuance by Seagate), directly or indirectly, of beneficial
\nownership or a right to acquire beneficial ownership of shares representing more
\nthan fifty percent (50%) of the voting power of the then outstanding shares of
\ncapital stock of the Seagate, in each case on terms that the Board of Directors
\nof Seagate determines, in its reasonable judgment, after consultation with its
\nfinancial advisor, to be more favorable to the stockholders of Seagate, from a
\nfinancial point of view, than the terms of this Agreement and the Merger;
\nprovided, however, that any such offer shall not be deemed to be a “Seagate
\nSuperior Offer” if any financing required to consummate<\/p>\n
-24-
\n 29<\/p>\n
the transaction contemplated by such offer is not committed and is not likely in
\nthe judgment of the Board of Directors of Seagate to be obtained by such third
\nparty on a timely basis. Notwithstanding the foregoing or anything to the
\ncontrary set forth in this Agreement, nothing in this Agreement shall prevent
\nthe Board of Directors of Seagate from withdrawing, amending or modifying its
\nrecommendation in favor of the transactions contemplated by the OD Documents, or
\nterminating the OD Documents in accordance with their terms.<\/p>\n
5.3 Confidentiality. Veritas and Seagate acknowledge that they have
\npreviously entered into a Confidentiality Agreement (the “CONFIDENTIALITY
\nAGREEMENT”), which shall continue in full force and effect in accordance with
\nits terms.<\/p>\n
5.4 No Solicitation.<\/p>\n
(a) From the execution and delivery of this Agreement and until
\nthe earlier to occur of the Effective Time and termination of this Agreement
\npursuant to Section 7.1 hereof, Seagate and its Subsidiaries shall not, and they
\nshall cause their respective officers, directors, affiliates or employees or any
\ninvestment banker, attorney or other advisor or representative retained by any
\nof them not to, directly or indirectly (i) solicit, initiate, encourage or
\ninduce the making, submission or announcement of any Seagate Acquisition
\nProposal (as defined in Section 5.4(b) hereof), (ii) participate in any
\ndiscussions or negotiations regarding, or furnish to any person any information
\nwith respect to, or take any other action to facilitate any inquiries or the
\nmaking of any proposal that constitutes or may reasonably be expected to lead
\nto, any Seagate Acquisition Proposal, (iii) engage in discussions with any
\nperson with respect to any Seagate Acquisition Proposal, (iv) subject to the
\nterms of Section 5.2(c) hereof, approve, endorse or recommend any Seagate
\nAcquisition Proposal, or (v) enter into any letter of intent or similar document
\nor any contract, agreement or commitment contemplating or otherwise relating to
\nany Seagate Acquisition Transaction (as defined in Section 5.4(b) hereof);
\nprovided, however, that until the date on which this Agreement is approved by
\nthe requisite vote of the stockholders of Seagate, the terms of this Section
\n5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate
\nand its Subsidiaries to, entering into a confidentiality or non-disclosure
\nagreement with, or entering into discussions with, any person or group in
\nresponse to a Seagate Superior Offer submitted by such person or group (and not
\nwithdrawn) if (a) neither Seagate nor any agents or representative of Seagate
\nand its Subsidiaries shall have violated any of the restrictions set forth in
\nthis Section 5.4(a), (b) the Board of Directors of Seagate concludes in good
\nfaith, after consultation with its outside legal counsel, that such action is
\nnecessary in order for the Board of Directors of Seagate to comply with its
\nfiduciary obligations to the stockholders of Seagate under applicable Law, (c)
\nSeagate receives from such person or group an executed confidentiality or
\nnon-disclosure agreement containing customary limitations on the use and
\ndisclosure of all non-public written and oral information furnished to such
\nperson or group by or on behalf of Seagate and containing terms no less
\nfavorable to the disclosing party than the terms of the Confidentiality
\nAgreement (including with respect to any standstill arrangements, unless the
\nstandstill arrangements in the Confidentiality Agreement are waived and (d)
\nprior to furnishing any such non-public information to such person or group, or
\nentering into negotiations or discussions, Seller notifies Purchaser promptly of
\nsuch inquiries, proposals or offers received by, any such information requested
\nfrom, or any such discussions or negotiations sought to be initiated or
\ncontinued with, any of its representatives indicating, in connection with such
\nnotice, the name of the person and the terms and conditions of any inquiries,
\nproposals or offers, and<\/p>\n
-25-
\n 30<\/p>\n
furnishes such non-public information to Veritas to the extent such
\ninformation has not been previously furnished to Veritas. Seagate and its
\nsubsidiaries shall immediately cease any and all existing activities,
\ndiscussions or negotiations with any parties conducted heretofore with respect
\nto any Seagate Acquisition Proposal.<\/p>\n
(b) For all purposes of and under this Agreement, the term
\n“SEAGATE ACQUISITION PROPOSAL” shall mean any offer or proposal (other than an
\noffer or proposal by Veritas) relating to any Seagate Acquisition Transaction.
\nFor all purposes of and under this Agreement, “SEAGATE ACQUISITION TRANSACTION”
\nshall mean any transaction or series of related transactions, other than the
\ntransactions contemplated by this Agreement or the OD Documents, involving: (i)
\nany acquisition or purchase from Seagate by any person or “group” (as defined
\nunder Section 13(d) of the Exchange Act and the rules and regulations
\npromulgated thereunder) of more than fifteen percent (15%) in interest of the
\ntotal outstanding voting securities of Seagate, or any tender offer or exchange
\noffer that if consummated would result in any person or “group” (as defined
\nunder Section 13(d) of the Exchange Act and the rules and regulations
\npromulgated thereunder) beneficially owning more than fifteen percent (15%) of
\nthe total outstanding voting securities of Seagate, or any merger,
\nconsolidation, business combination or similar transaction involving Seagate
\npursuant to which the stockholders of Seagate immediately preceding such
\ntransaction would hold less than fifteen percent (15%) of the equity interests
\nin the surviving or resulting entity of such transaction; (ii) any sale, lease
\n(other than in the ordinary course of business), exchange, transfer, license
\n(other than in the ordinary course of business), acquisition or disposition of
\nmore than fifteen percent (15%) of the assets and properties of Seagate; or (iv)
\nany liquidation or dissolution of Seagate, excluding, in all cases any
\ndisposition of the assets covered by the OD Documents.<\/p>\n
(c) In addition to the restrictions and obligations of Seagate
\nset forth in Section 5.4(a) hereof, Seagate as promptly as practicable, and in
\nany event within twenty-four (24) hours, shall advise Veritas orally and in
\nwriting of any request received by Seagate for non-public information which
\nSeagate reasonably believes could lead to a Seagate Acquisition Proposal or of
\nany Seagate Acquisition Proposal, the material terms and conditions of such
\nrequest or Seagate Acquisition Proposal, and the identity of the person or group
\nmaking any such request or Seagate Acquisition Proposal. Seagate shall keep
\nVeritas informed in all material respects of the status and details (including
\nmaterial amendments or proposed amendments) of any such request or Seagate
\nAcquisition Proposal.<\/p>\n
5.5 Public Disclosure. Veritas and Seagate shall consult with each other
\nand agree before issuing any press release or otherwise making any public
\nstatement with respect to the Merger, this Agreement, or a Seagate Acquisition
\nProposal and shall not issue any such press release or make any such public
\nstatement prior to such agreement, except as may be required by law or any
\nlisting agreement with a national securities exchange or the Nasdaq, in which
\ncase reasonable efforts to consult with the other party hereto shall be made
\nprior to such release or public statement; provided, however, that no such
\nconsultation or agreement shall be required if, prior to the date of such
\nrelease or public statement, Seagate shall have withheld, withdrawn, amended or
\nmodified its recommendation in favor of this Agreement and the Merger or the OD
\nDocuments and the transactions contemplated thereunder.<\/p>\n
-26-
\n 31<\/p>\n
5.6 Legal Requirements. Each of Veritas, Merger Sub and Seagate shall
\ntake all reasonable actions necessary or desirable to comply promptly with all
\nlegal requirements which may be imposed on them with respect to the consummation
\nof the Merger and the other transactions contemplated hereby (including, without
\nlimitation, furnishing all information required in connection with approvals of,
\nor filings with, any Governmental Entity, and prompt resolution of any
\nlitigation prompted hereby), and shall promptly cooperate with, and furnish
\ninformation to, the other party hereto to the extent necessary in connection
\nwith any such requirements imposed upon either of them or their respective
\nsubsidiaries in connection with the consummation of the Merger and the other
\ntransactions contemplated hereby. Veritas shall use its commercially reasonable
\nefforts to take such steps as may be necessary to comply with the securities and
\nstate “blue sky” securities laws of all jurisdictions which are applicable to
\nthe issuance of Veritas Common Stock pursuant to the Merger in accordance with
\nthis Agreement. Seagate shall use its commercially reasonable efforts to assist
\nVeritas as may be necessary to comply with the securities and state “blue sky”
\nsecurities laws of all jurisdictions which are applicable in connection with the
\nissuance of Veritas Common Stock pursuant to the Merger in accordance with this
\nAgreement.<\/p>\n
5.7 Notification of Certain Matters. Veritas shall give prompt notice to
\nSeagate, and Seagate shall give prompt notice to Veritas, of the occurrence, or
\nfailure to occur, of any event, which occurrence or failure to occur would be
\nreasonably likely to cause (i) any representation or warranty contained in this
\nAgreement to be untrue or inaccurate at the Effective Time, such that the
\nconditions set forth in Section 6.2(a) or Section 6.3(a) hereof, as the case may
\nbe, would not be satisfied or fulfilled as a result thereof, or (ii) any
\nmaterial failure of Veritas, Merger Sub or Seagate, as the case may be, or of
\nany officer, director, employee or agent thereof, to comply with or satisfy any
\ncovenant, condition or agreement to be complied with or satisfied by it under
\nthis Agreement. Notwithstanding the foregoing, the delivery of any notice
\npursuant to this Section 5.7 shall not limit or otherwise affect the rights and
\nremedies available hereunder to the party receiving such notice.<\/p>\n
5.8 Commercially Reasonable Efforts and Further Assurances. Subject to
\nthe respective rights and obligations of Veritas and Seagate under this
\nAgreement, each of Veritas and Seagate shall use its respective commercially
\nreasonable efforts to effectuate the Merger and the other transactions
\ncontemplated hereby, and to fulfill and cause to be fulfilled the conditions to
\nthe Closing under this Agreement. Each of Veritas and Seagate, at the reasonable
\nrequest of the other party hereto, shall execute and deliver such other
\ninstruments, and do and perform such other acts and things, as may be necessary
\nor desirable for effecting completely the consummation of the Merger and the
\nother transactions contemplated hereby.<\/p>\n
5.9 Indemnification.<\/p>\n
(a) From and after the Effective Time, the Surviving Corporation
\nshall fulfill and honor in all respects the obligations of Seagate pursuant to
\nany indemnification agreements between Seagate and any of its directors and
\nofficers existing prior to the date hereof to the extent the obligations
\nthereunder relate to the approval and adoption of the Merger. The Certificate of
\nIncorporation and Bylaws of the Surviving Corporation shall contain the
\nprovisions with respect to indemnification, exculpation, expense advancement and
\nelimination of liability for monetary damages relating to the approval and
\nadoption of the Merger at least as favorable as<\/p>\n
-27-
\n 32<\/p>\n
is set forth in the Certificate of Incorporation and Bylaws of Seagate, which
\nprovisions shall not be amended, repealed or otherwise modified for a period of
\nsix (6) years from the Effective Time in any manner that would adversely affect
\nthe rights thereunder of individuals who, at the Effective Time, were directors,
\nofficers, employees or agents of Seagate, unless such modification is required
\nby law.<\/p>\n
(b) For a period of six (6) years after the Effective Time,
\nVeritas shall use its commercially reasonable efforts to maintain in effect, if
\navailable, directors’ and officers’ liability insurance (or purchase tail
\ncoverage) covering those persons who are currently covered by Seagate’s
\ndirectors’ and officers’ liability insurance policy on terms comparable to those
\napplicable to the then current directors and officers of Veritas.<\/p>\n
(c) In the event that the Surviving Corporation or any of its
\nsuccessors or assigns (i) consolidates with or merges into any other person and
\nshall not be the continuing or surviving corporation or entity of such
\nconsolidation or merger, or (ii) transfers a material amount of its assets and
\nproperties to any person in a single transaction or a series of related
\ntransactions, then, and in each such case, the Surviving Corporation shall
\neither guaranty the indemnification obligations of the Surviving Corporation
\nunder this Section 5.10, or shall make, or cause to be made, proper provision so
\nthat the successors and assigns of the Surviving Corporation assume the
\nindemnification obligations of the Surviving Corporation under this Section 5.11
\nfor the benefit of the parties entitled to the benefits of this Section 5.10
\n(the “INDEMNIFIED PARTIES”). The terms and provisions of this Section 5.10 are
\n(a) intended to be for the benefit of, and shall be enforceable by, each of the
\nIndemnified Parties, and (b) in addition to, and not in substitution for, any
\nother rights to indemnification or contribution that any of the Indemnified
\nParties may have by contract or otherwise.<\/p>\n
(d) This Section 5.9 shall survive any termination of this
\nAgreement and the consummation of the Merger at the Effective Time, and shall be
\nbinding on all successors and assigns of the Surviving Corporation.<\/p>\n
5.10 Tax-Free Reorganization. Neither Seagate nor Veritas shall, nor
\nshall either permit any of its Subsidiaries to take or cause to be taken any
\naction that would disqualify the Merger as a “reorganization” within the meaning
\nof Section 368(a) of the Code; provided, however, that neither party shall have
\nany liability under this Section 5.10 as a result of any action contemplated
\nhereunder or by the OD Documents.<\/p>\n
5.11 Nasdaq Listing. Veritas shall authorize for listing on the Nasdaq
\nthe shares of Veritas Common Stock issuable pursuant to the Merger in accordance
\nwith this Agreement, upon official notice of issuance.<\/p>\n
5.12 Seagate Affiliate Agreement. Prior to the Seagate Stockholders
\nMeeting, Seagate shall provide Veritas a complete and accurate list of those
\npersons who may be deemed to be, in Seagate’s reasonable judgment, affiliates of
\nSeagate within the meaning of Rule 145 promulgated under the Securities Act (a
\n“SEAGATE AFFILIATE”). Seagate shall provide Veritas with such information and
\ndocuments as Veritas reasonably requests for purposes of reviewing and verifying
\nthe foregoing list. Seagate shall deliver or cause to be delivered to Veritas as
\npromptly as practicable on or following the date hereof, but in no event later
\nthan the date the Proxy<\/p>\n
-28-
\n 33<\/p>\n
Statement is filed with the SEC, from each Seagate Affiliate an executed
\nAffiliate Agreement, in customary form and substance reasonably satisfactory to
\nVeritas (the “SEAGATE AFFILIATE AGREEMENT”), each of which will be effective as
\nof the Effective Time. Veritas shall be entitled to place appropriate legends on
\nthe certificates evidencing any Veritas Common Stock to be received by a Seagate
\nAffiliate pursuant to the Merger in accordance with this Agreement, and to issue
\nappropriate stop transfer instructions to the transfer agent for the Veritas
\nCommon Stock.<\/p>\n
5.13 Regulatory Filings; Reasonable Efforts. As soon as practicable
\nfollowing the execution and delivery of this Agreement, Seagate and Veritas each
\nshall file with the United States Federal Trade Commission (the “FTC”) and the
\nAntitrust Division of the United States Department of Justice (“DOJ”) a
\nNotification and Report Form relating to the Merger and the other transactions
\ncontemplated hereby as required by the HSR Act, as well as any comparable
\npre-merger notification forms required by the merger notification or control
\nlaws and regulations of any applicable jurisdiction, as agreed to by Seagate and
\nVeritas. Seagate and Veritas each shall promptly (i) supply the other with any
\ninformation which may be required in order to effectuate the foregoing filings,
\nand (ii) supply any additional information which reasonably may be required by
\nthe FTC, the DOJ or the competition or merger control authorities of any other
\njurisdiction and which the parties may reasonably deem appropriate.<\/p>\n
5.14 Access to Information. From the date hereof until the Effective
\nDate, Seagate will, and will cause each of its subsidiaries to (i) allow Veritas
\nand its officers, employees, counsel, accountants, actuaries, consultants and
\nother authorized representatives (“REPRESENTATIVES”) to have full access to the
\nbooks, records, contracts, properties, facilities, accountants, actuaries,
\nconsultants, advisors, management and personnel of Seagate and its subsidiaries
\nat all reasonable times, (ii) furnish promptly to Veritas and its
\nRepresentatives all information and documents concerning Seagate and its
\nsubsidiaries as Veritas or its Representatives may reasonably request and (iii)
\ncause the respective officers, employees and Representatives of Seagate and its
\nsubsidiaries to cooperate in good faith with Veritas and its Representatives in
\nconnection with all such access.<\/p>\n
5.15 TRA Matters.<\/p>\n
(a) Form. The TRA Rights shall be evidenced by a non-transferable
\ndocument in form and substance reasonably satisfactory to Veritas and Seagate,
\nand shall contain legends to the effect that they are non-negotiable instruments
\nas well as such other legends as may be required by law. The TRA Rights shall
\nhave an expiration date of March 31, 2003, after which time they shall expire
\nwithout further act. After the expiration date of the TRA Rights, any TRA
\nAmounts received by Veritas and its Affiliates shall be the property of Veritas
\nwithout any obligation whatsoever to account therefor to former holders of the
\nTRA Rights.<\/p>\n
(b) Administration generally. On or prior to the Effective Time,
\nSeagate shall designate one or more designees (the “ADMINISTRATORS”) who shall
\nbe responsible for overseeing collection of the TRA Amounts and coordinating
\nactivities with representatives of Veritas and Purchaser with respect to Seagate
\nTaxes. Veritas and Seagate will, prior to the Effective Time, cooperate in good
\nfaith with respect to establishing procedures and structures designed to
\nmaximize the aggregate value of the TRA Amount and minimize the amount of
\nadministrative costs. This may include the establishment of segregated accounts,
\npass-through trusts or similar<\/p>\n
-29-
\n 34<\/p>\n
devices (collectively, a “COLLECTION ACCOUNT”) to receive periodic payments of
\nTRA Amounts. The Administrators shall be entitled to charge the Collection
\nAccount a fee of 1% for all amounts deposited therein and distributed to holders
\nof the TRA Rights.<\/p>\n
(c) Collection Amount. Following the Effective Time, Veritas
\nshall forward to the Collection Account (and notify the Administrators of) any
\nsuch refunds or credits after receipt or realization thereof by Veritas.<\/p>\n
(d) Payments. Any payments from Veritas required to be paid shall
\nbe made within 10 business days of the receipt of any refund or realization of
\ncredit as the case may be. Any such payments not made within such time period,
\nshall be subject to an interest charge of 8% per annum.<\/p>\n
(e) Investments\/Distributions. Amounts deposited in the
\nCollection Account shall be invested in short-term money markets instruments,
\nand shall be distributed to holders of TRA Rights on each calendar quarterly end
\ncommencing September 30, 2000.<\/p>\n
(f) Conduct of Audits and Other Procedural Matters. The
\nAdministrators shall have the right to initiate any claim for refund, credit or
\namended return that would give rise to a TRA Amount, and to control any audit,
\nexamination or contest with respect thereto, except if such audit, examination
\nor contest may give rise to an indemnification obligation by Purchaser under the
\nIndemnification Agreement, in which case the provisions of Section 6(d)(i) of
\nthe Indemnification Agreement shall control. Venus shall promptly forward to the
\nAdministrators all written notifications and other written communications,
\nincluding if available the original envelope showing any postmark, from any
\ntaxing authority received by Venus or its affiliates relating to the TRA Amount.<\/p>\n
(g) Assistance and Cooperation. After the Effective Time, Veritas
\nshall (and shall cause their respective Affiliates to):<\/p>\n
(i) Assist the Administrators in calculating the potential
\namount of the TRA Amount and included any Tax Returns prepaid by Veritas claims
\nfor refunds or credits designed to maximize the TRA Amount;<\/p>\n
(ii) Cooperate fully in preparing for any audits of, or
\ndisputes with taxing authorities regarding the TRA Amount;<\/p>\n
(iii) Make available to the other and to any taxing
\nauthority as reasonably requested all information, records, and documents
\nrelating to Taxes of Veritas, Seagate or any of their respective subsidiaries;<\/p>\n
(iv) Provide timely notice to the other in writing of any
\npending or threatened Tax audits or assessments relating to refunds or credits
\nincluded or potentially includable by individuals in the TRA Amount; and<\/p>\n
(v) Furnish the other with copies of all correspondence
\nreceived from any taxing authority in connection with any Tax audit which may
\naffect refunds or credits included or potentially includable in the TRA Amount.<\/p>\n
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\n 35<\/p>\n
(h) Exculpation. In performing any duties under this Agreement,
\nthe Administrator shall not be liable to any party for damages, losses, or
\nexpenses, except for negligence or willful misconduct on the part of the
\nAdministrator. The Administrator shall not incur any such liability for (A) any
\nact or failure to act made or omitted in good faith, or (B) any action taken or
\nomitted in reliance upon any instrument, including any written statement or
\naffidavit provided for in this Agreement that the Administrator shall in good
\nfaith believe to be genuine, nor will the Administrator be liable or responsible
\nfor forgeries, fraud, impersonations, or determining the scope of any
\nrepresentative authority. In addition, the Administrator may consult with legal
\ncounsel in connection with performing the Administrator’s duties under this
\nAgreement and shall be fully protected in any act taken, suffered, or permitted
\nby him\/her in good faith in accordance with the advice of counsel. The
\nAdministrator is not responsible for determining and verifying the authority of
\nany person acting or purporting to act on behalf of any party to this Agreement.<\/p>\n
(i) Dragon Shares. Any Dragon Shares escrowed at the Effective
\nTime or with respect to which the parties did not mutually agree to a value,
\nshall be added to the TRA Amount, mutatis mutandis.<\/p>\n
ARTICLE VI
\n CONDITIONS TO THE MERGER<\/p>\n
6.1 Conditions to Obligations of Each Party to Effect the Merger. The
\nrespective obligations of each party to this Agreement to effect the Merger and
\nthe other transactions contemplated hereby shall be subject to the satisfaction
\nor fulfillment, at or prior to the Effective Time, of the following conditions:<\/p>\n
(a) Stockholder Approvals. This Agreement shall have been
\napproved and adopted, and the Merger shall have been duly approved, by the
\nrequisite vote under applicable law by the stockholders of Seagate. The Share
\nIncrease and the Merger shall have been approved by the requisite vote of the
\nVeritas stockholders.<\/p>\n
(b) Registration Statement Effective; Proxy Statement. The SEC
\nshall have declared the Registration Statement effective. No stop order
\nsuspending the effectiveness of the Registration Statement or any part thereof
\nshall have been issued and no proceeding for that purpose, and no similar
\nproceeding in respect of the Proxy Statement, shall have been initiated or
\nthreatened in writing by the SEC.<\/p>\n
(c) No Order; HSR Act. No Governmental Entity shall have enacted,
\nissued, promulgated, enforced or entered any statute, rule, regulation,
\nexecutive order, decree, injunction or other order (whether temporary,
\npreliminary or permanent) which is in effect and which has the effect of making
\nthe Merger illegal or otherwise prohibiting consummation of the Merger. All
\nrequirements, if any, under the HSR Act or equivalent foreign statute, rule,
\nregulation or order relating to the transactions contemplated hereby shall have
\nexpired or terminated early.<\/p>\n
(d) Tax Opinions. Veritas and Seagate shall each have received
\nsubstantially identical written opinions from their respective counsels, Willkie
\nFarr & Gallagher and Wilson Sonsini Goodrich & Rosati, Professional Corporation,
\nin form and substance reasonably<\/p>\n
-31-
\n 36<\/p>\n
satisfactory to them, to the effect that the Merger should constitute a
\n“reorganization” within the meaning of Section 368(a) of the Code, and such
\nopinions shall not have been withdrawn. The parties to this Agreement agree to
\nmake reasonable representations as requested by such counsel for the purpose of
\nrendering such opinions.<\/p>\n
(e) Closing of OD Documents. The closing of the transactions
\ncontemplated by the OD Documents shall have occurred without waiver of Section
\n9.2(a) and (b) or 9.3(a) and (b) of the OD Documents, and pursuant thereto,
\nSeagate and Star Software shall not have (i) any assets or properties other than
\nthe Designated Assets, or (ii) any Liabilities (other than the Designated
\nLiabilities) or other obligations (absolute, accrued contemplated or otherwise)
\nfor which Veritas is not entitled to indemnification under the Indemnification
\nAgreement, and Seagate and Purchaser shall have provided Veritas with
\ncertificates by their respective Chief Financial Officers to the foregoing
\neffect.<\/p>\n
6.2 Additional Conditions to Obligations of Seagate. The obligation of
\nSeagate to consummate and effect the Merger and the other transactions
\ncontemplated hereby shall be subject to the satisfaction or fulfillment, at or
\nprior to the Effective Time, of the following conditions, any of which may be
\nwaived, in writing, exclusively by Seagate:<\/p>\n
(a) Representations and Warranties. The representations and
\nwarranties of Veritas and Merger Sub contained in this Agreement shall have been
\ntrue and correct in all material respects as of the date hereof, except where
\nthe failure to be so true and correct would not, in the aggregate, reasonably be
\nexpected to have a Material Adverse Effect on Veritas. In addition, the
\nrepresentations and warranties of Veritas contained in this Agreement shall be
\ntrue and correct in all material respects on and as of the Effective Time
\n(except for changes contemplated by this Agreement and except for those
\nrepresentations and warranties which address matters only as of a particular
\ndate, which shall have been true and correct only as of such particular date),
\nwith the same force and effect as if made on and as of the Effective Time,
\nexcept in such cases where the failure to be so true and correct would not, in
\nthe aggregate, reasonably be expected to have a Material Adverse Effect on
\nVeritas. Seagate shall have received a certificate with respect to the foregoing
\nsigned on behalf of Veritas by the Chief Executive Officer and the Chief
\nFinancial Officer of Veritas.<\/p>\n
(b) Agreements and Covenants. Veritas and Merger Sub shall have
\nperformed or complied in all material respects with all agreements and covenants
\nrequired by this Agreement to be performed or complied with by it on or prior to
\nthe Effective Time, and Seagate shall have received a certificate to such effect
\nsigned on behalf of Veritas by the Chief Executive Officer and the Chief
\nFinancial Officer of Veritas.<\/p>\n
6.3 Additional Conditions to the Obligations of Veritas and Merger Sub.
\nThe obligations of Veritas and Merger Sub to consummate and effect the Merger
\nshall be subject to the satisfaction or fulfillment, at or prior to the
\nEffective Time, of the following conditions, any of which may be waived, in
\nwriting, exclusively by Veritas:<\/p>\n
(a) Representations and Warranties. The representations and
\nwarranties of Seagate contained in this Agreement shall have been true and
\ncorrect in all material respects as of the date hereof, except where the failure
\nto be so true and correct would not, in the aggregate,<\/p>\n
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\n 37<\/p>\n
reasonably be expected to have a Material Adverse Effect on Seagate. In
\naddition, the representations and warranties of Seagate contained in this
\nAgreement shall be true and correct in all material respects on and as of the
\nEffective Time (except for changes contemplated by this Agreement and except for
\nthose representations and warranties which address matters only as of a
\nparticular date, which shall have been true and correct as of such particular
\ndate), with the same force and effect as if made on and as of the Effective
\nTime, except in such cases where the failure to be so true and correct would
\nnot, in the aggregate, reasonably be expected to have a Material Adverse Effect
\non Seagate. Veritas shall have received a certificate with respect to the
\nforegoing signed on behalf of Seagate by the President and the Chief Financial
\nOfficer of Seagate. The representations and warranties in Section 2.3(b) hereof
\nshall be true and correct in all material respects.<\/p>\n
(b) Agreements and Covenants. Seagate shall have performed or
\ncomplied in all material respects with all agreements and covenants required by
\nthis Agreement to be performed or complied with by it on or prior to the
\nEffective Time, and the Veritas shall have received a certificate to such effect
\nsigned on behalf of Seagate by the President and the Chief Financial Officer of
\nSeagate.<\/p>\n
(c) Indemnification Agreement Representations and Warranties.
\nEach of the representations and warranties of the parties (other than Veritas)
\nin the Indemnification Agreement (i) to the extent qualified by materiality
\nshall be true and correct, and (ii) to the extent not qualified by materiality,
\nshall be true and correct in all material respects, in each of cases (i) and
\n(ii), on the date of this Agreement and as of the Closing Date, as if made at
\nand as of such time (except to the extent expressly made as of an earlier date,
\nin which case as of such date), except as otherwise contemplated by this
\nAgreement. The Indemnification Agreement shall be in full force and effect, and
\neach Subsidiary of Purchaser shall have executed and delivered a joinder
\nagreement in accordance with the terms of the Indemnification Agreement.<\/p>\n
(d) Financing. The Financing (as defined in the OD Documents)
\nshall have closed on the terms and conditions specified in the Commitment
\nLetters (as defined in the OD Documents) and no material change in the terms of
\nsuch Financing shall have occurred which, in Veritas’ reasonable judgment, would
\nmaterially and adversely impact Purchaser’s ability to timely satisfy its
\nobligations under the Indemnification Agreement.<\/p>\n
ARTICLE VII
\n TERMINATION, FEES AND EXPENSES; AMENDMENT AND WAIVER<\/p>\n
7.1 Termination. This Agreement may be terminated at any time prior to
\nthe Effective Time, whether before or after approval of this Agreement and the
\nMerger by the stockholders of Seagate:<\/p>\n
(a) by mutual written consent, duly authorized by the Boards of
\nDirectors of Veritas and Seagate;<\/p>\n
(b) by either Seagate or Veritas, if the Merger shall not have
\nbeen consummated by December 31, 2000; provided, however, that the right to
\nterminate this Agreement pursuant to this Section 7.1(b) shall not be available
\nto any party hereto whose failure<\/p>\n
-33-
\n 38<\/p>\n
to fulfill any obligation under this Agreement (including, without limitation,
\nsuch party’s obligation under Section 5.4 hereof) has been a principal cause of,
\nor resulted in, the failure of the Merger to be consummated on or before such
\ndate<\/p>\n
(c) by either Seagate or Veritas, if a Governmental Entity shall
\nhave issued an order, decree or ruling or taken any other action, in any case
\nhaving the effect of permanently restraining, enjoining or otherwise prohibiting
\nthe Merger, which order, decree or ruling is final and nonappealable;<\/p>\n
(d) by either Seagate or Veritas, if (i) the requisite approval
\nof the stockholders of Seagate under applicable law to approve this Agreement
\nand the Merger shall not have been obtained by reason of the failure to obtain
\nthe requisite vote upon a vote taken at a meeting of the stockholders of Seagate
\nduly convened therefor or at any adjournment or postponement thereof; and (ii)
\nthe required approval by the stockholders of Veritas of the Share Increase (if
\nnot previously approved) and the Merger shall not have been obtained by reason
\nof the failure to obtain the required vote at a meeting of Veritas stockholders
\nduly convened therefor or at any adjournment thereto; provided, however, that a
\nparty’s right to terminate this Agreement pursuant to this Section 7.1(d) shall
\nnot be available to Seagate if the failure to obtain the foregoing approval of
\nthe stockholders of that party shall have been caused by that party’s action or
\nfailure to act in a manner which constitutes a material breach of this
\nAgreement;<\/p>\n
(e) by Seagate, upon a breach by Veritas of any representation,
\nwarranty, covenant or agreement of Veritas in this Agreement, or if any
\nrepresentation or warranty of Veritas shall have become untrue, in either case
\nsuch that the conditions set forth in Section 6.2(a) or Section 6.2(b) hereof
\nwould not be satisfied as of the time of such breach or as of the time such
\nrepresentation or warranty shall have become untrue; provided, however, that if
\nsuch inaccuracy in Veritas’ representations and warranties, or breach by
\nVeritas, is curable, then Seagate may not terminate this Agreement pursuant to
\nthis Section 7.1(e) for thirty-five (35) calendar days after delivery of written
\nnotice to Veritas of such breach, provided that Veritas continues to exercise
\ncommercially reasonable efforts to cure such breach (it being understood that
\nSeagate may not terminate this Agreement pursuant to this Section 7.1(e) if such
\nbreach by Veritas is cured during such thirty-five (35)-day period);<\/p>\n
(f) by Veritas, upon a breach by Seagate of any representation,
\nwarranty, covenant or agreement of Seagate contained in this Agreement, or if
\nany representation or warranty of Seagate shall have become untrue, in either
\ncase such that the conditions set forth in Section 6.3(a) or Section 6.3(b)
\nhereof would not be satisfied as of the time of such breach or as of the time
\nsuch representation or warranty shall have become untrue, provided, however,
\nthat if such inaccuracy in Seagate’s representations and warranties, or breach
\nby Seagate, is curable then Veritas may not terminate this Agreement pursuant to
\nthis Section 7.1(f) for thirty-five (35) calendar days after delivery of written
\nnotice to Seagate of such breach, provided that Seagate continues to exercise
\ncommercially reasonable efforts to cure such breach (it being understood that
\nVeritas may not terminate this Agreement pursuant to this Section 7.1(f) if such
\nbreach by Seagate is cured during such thirty-five (35)-day period);<\/p>\n
(g) by Seagate, if (i) prior to the receipt of the requisite
\napproval of the stockholders of Seagate to this Agreement and the Merger,
\nSeagate receives a Seagate Superior<\/p>\n
-34-
\n 39<\/p>\n
Offer and the Board of Directors of Seagate concludes in good faith, after
\nconsultation with its outside counsel, that in light of such Seagate Superior
\nOffer, the termination of this Agreement in order to accept such Seagate
\nSuperior Offer is necessary in order for the Board of Directors of Seagate to
\ncomply with its fiduciary obligations to the stockholders of Seller under
\napplicable law, and Seagate enters into an agreement contemplating, or
\nconsummates, a Seagate Acquisition Transaction, and (ii) Seagate has complied
\nwith all of its obligations under Section 5.4 hereof, and (iii) prior to the
\ntermination of this Agreement pursuant to this Section 7.1(g), pays Veritas the
\nSeagate Termination Fee pursuant to Section 7.3(b)(ii) hereof; provided, that
\nsuch termination may take place only after two (2) business days following
\nVeritas’ receipt of written notice advising Veritas that the Board of Directors
\nof Seagate has received a Seller Superior Offer specifying the material terms
\nand conditions of such Seagate Superior Offer (and including a copy thereof with
\nall accompanying documentation, if in writing), identifying the person making
\nsuch Seagate Superior Offer and stating that it intends to make the
\ndetermination set forth in clause (i) of this Section 7.1(g). After providing
\nsuch notice, Seagate shall provide an opportunity to Veritas to make such
\nadjustments in the terms and conditions of this Agreement as would enable
\nSeagate to proceed with its recommendation to its stockholders without making
\nthe determination set forth in clause (i) of this Section 7.1(g); provided,
\nfurther, however, that any such adjustment shall be at the discretion of Veritas
\nat the time; or<\/p>\n
(h) by Veritas, if a Veritas Triggering Event shall have
\noccurred. For all purposes of and under this Agreement, a “VERITAS TRIGGERING
\nEVENT” shall be deemed to have occurred if: (i) the Board of Directors of
\nSeagate (or any committee thereof) shall for any reason have withdrawn or shall
\nhave amended or modified in a manner adverse to Veritas its recommendation in
\nfavor of the adoption and approval of this Agreement or the Merger; (ii) Seagate
\nshall have failed to include in the Proxy Statement the recommendation of the
\nBoard of Directors of Seagate in favor of the adoption and approval of this
\nAgreement and the Merger or shall have taken any action or made any statement
\ninconsistent with such recommendation; or (iii) a tender or exchange offer
\nrelating to securities of Seagate shall have been commenced by a person
\nunaffiliated with Veritas, and Seagate shall not have sent to its
\nsecurityholders pursuant to Rule 14e-2 promulgated under the Securities Act,
\nwithin ten (10) business days after such tender or exchange offer is first
\npublished sent or given, a statement disclosing that Seagate recommends
\nrejection of such tender or exchange offer; or<\/p>\n
(i) by Seagate, if: (i) the Board of Directors of Veritas (or any
\ncommittee thereof) shall for any reason have withdrawn or shall have amended or
\nmodified in a manner adverse to Seagate its recommendation in favor of the Share
\nIncrease (if not previously approved) and the Merger; or (ii) Veritas shall have
\nfailed to include in the Proxy Statement the recommendation of the Board of
\nDirectors of Veritas in favor of the Share Increase (if not previously approved)
\nand the Merger.<\/p>\n
7.2 Notice of Termination; Effect of Termination. Except as set forth in
\nSection 7.3(b), any termination of this Agreement pursuant to Section 7.1 hereof
\nshall be effective immediately upon the delivery of written notice of the
\nterminating party to the other party hereto. In the event of the termination of
\nthis Agreement pursuant to Section 7.1 hereof, this Agreement shall be of no
\nfurther force or effect, except (i) as set forth in this Section 7.2, Section
\n7.3 hereof and Article VIII hereof, each of which shall survive the termination
\nof this Agreement without limitation, and (ii) that nothing herein shall relieve
\nany party from liability for any intentional<\/p>\n
-35-
\n 40<\/p>\n
breach of this Agreement. A change by the Veritas board of directors of its
\nrecommendation of approval of the Merger and\/or the Share Increase shall be an
\nintentional breach by Veritas of the terms hereof unless Veritas, at the time of
\nsuch change, had the right to terminate this Agreement. In the event of the
\ntermination of this Agreement under circumstances whereby the Seagate
\nTermination Fee shall be payable, either immediately or based upon the
\noccurrence of a subsequent event, the provisions of any standstill or similar
\nagreement that would prevent an acquisition by Veritas or any of its affiliates
\nof capital stock or assets of Seagate or any affiliate of Seagate (such
\nprovisions being “standstill provisions”) shall terminate without any further
\naction on the Part of Veritas or Seagate, providing that (i) only such
\nstandstill provisions of any such agreement shall terminate and the remaining
\nprovisions thereof shall remain in full force and effect in accordance with
\ntheir terms and (ii) no severability provisions of any such agreement shall be
\ninterpreted to require the replacement of such standstill provisions with any
\nother provision.<\/p>\n
7.3 Fees and Expenses.<\/p>\n
(a) General. Except as set forth in this Section 7.3, all fees
\nand expenses incurred in connection with this Agreement and the transactions
\ncontemplated hereby shall be paid by the party incurring such expenses, whether
\nor not the Merger is consummated.<\/p>\n
(b) Seagate Payments.<\/p>\n
(i) Seagate shall pay to Veritas in immediately available
\nfunds, within one (1) business day after such notice of termination is
\ndelivered, an amount equal to $440,000,000 (the “SEAGATE TERMINATION FEE”) if
\nthis Agreement is terminated by Veritas pursuant to Section 7.1(h) hereof.<\/p>\n
(ii) Seagate shall pay Veritas in immediately available
\nfunds, prior to the termination of this Agreement, an amount equal to the
\nSeagate Termination Fee if this Agreement is terminated by Seagate pursuant to
\nSection 7.1(g) hereof.<\/p>\n
(iii) Seagate shall pay to Veritas in immediately
\navailable funds, within one (1) business day after the date Seagate directly or
\nindirectly enters into an agreement with any third party with respect to a
\nSeagate Acquisition Transaction or a Seagate Acquisition Transaction is
\nconsummated, an amount equal to the Seagate Termination Fee if (A) this
\nAgreement is terminated by Veritas pursuant to Section 7.1(d)(i) hereof and at
\nsuch time was not terminable by Seagate pursuant to Section 7.1(d)(ii), (B) at
\nany time after the date of this Agreement and at or before the Seagate
\nStockholder Meeting a Seagate Acquisition Proposal shall have been publicly
\nannounced or otherwise communicated to the Seagate, and (C) within twelve (12)
\nmonths of the termination of this Agreement, Seagate directly or indirectly
\nenters into an agreement with any third party with respect to a Seagate
\nAcquisition Transaction or a Seagate Acquisition Transaction is consummated.<\/p>\n
(iv) Seagate shall pay to Veritas in immediately
\navailable funds, within one (1) business day after the first to occur of the
\nevents set forth in clause (d) below, an amount equal to the Seagate Termination
\nFee if (A) this Agreement is terminated by either party pursuant to Section
\n7.1(b) hereof and at such time was not terminable by Seagate pursuant to<\/p>\n
-36-
\n 41<\/p>\n
Section 7.1(d)(ii), (B) at any time after the date of this Agreement and at or
\nbefore the Termination Date a Seagate Acquisition Proposal shall have been
\npublicly announced or otherwise communicated to the Seagate, (C) following the
\npublic announcement or communication of such Seagate Acquisition Proposal and
\nprior to any such terminations, Seagate shall have intentionally breached (and
\nnot cured after notice thereof) any of its covenants or agreements set forth in
\nthis Agreement in any material respect, which breach shall have contributed to
\nthe failure of the Closing to occur on or before the Termination Date, and (D)
\nwithin twelve (12) months of the termination of this Agreement, Seagate directly
\nor indirectly enters into an agreement with any third party with respect to a
\nSeagate Acquisition Transaction or a Seagate Acquisition Transaction is
\nconsummated.<\/p>\n
(v) For all purposes of and under this Section 7.3, the
\nterm “SEAGATE ACQUISITION PROPOSAL” shall mean any offer or proposal (other than
\nan offer or proposal by Veritas relating to any Seagate Acquisition Transaction.
\nFor all purposes of and under this Section 7.3, “SEAGATE ACQUISITION
\nTRANSACTION” shall mean any transaction or series of related transactions
\ninvolving: (i) any acquisition or purchase from Seagate by any person or “group”
\n(as defined under Section 13(d) of the Exchange Act and the rules and
\nregulations promulgated thereunder) of more than fifty percent (50%) in interest
\nof the total outstanding voting securities of Seagate, or any tender offer or
\nexchange offer that if consummated would result in any person or “group” (as
\ndefined under Section 13(d) of the Exchange Act and the rules and regulations
\npromulgated thereunder) beneficially owning more than fifty percent (50%) of the
\ntotal outstanding voting securities of Seagate, or any merger, consolidation,
\nbusiness combination or similar transaction involving Seagate pursuant to which
\nthe stockholders of Seagate immediately preceding such transaction would hold
\nless than fifty percent (50%) of the equity interests in the surviving or
\nresulting entity of such transaction (or the ultimate parent entity thereof);
\n(ii) any sale, lease (other than in the ordinary course of business), exchange,
\ntransfer, license (other than in the ordinary course of business), acquisition
\nor disposition of more than fifty percent (50%) of the assets and properties of
\nSeagate; or (iii) any liquidation or dissolution of Seagate, excluding in all
\ncases any disposition of the assets covered by the OD Documents.<\/p>\n
(vi) Seagate acknowledges that the agreements contained in
\nthis Section 7.3(b) are an integral part of the transactions contemplated by
\nthis Agreement, and that, without these agreements, Veritas would not enter into
\nthis Agreement.<\/p>\n
7.4 Amendment. Subject to applicable law, this Agreement may be amended
\nby the parties hereto at any time by execution of an instrument in writing
\nsigned on behalf of each of the parties hereto.<\/p>\n
7.5 Extension; Waiver. At any time prior to the Effective Time any party
\nhereto may, to the extent legally allowed, (i) extend the time for the
\nperformance of any of the obligations or other acts of the other party hereto,
\n(ii) waive any inaccuracies in the representations and warranties made to such
\nparty contained herein or in any document delivered pursuant hereto, and (iii)
\nwaive compliance with any of the agreements or conditions for the benefit of
\nsuch party contained herein. Any agreement on the part of a party hereto to any
\nsuch extension or waiver shall be valid only if set forth in an instrument in
\nwriting signed on behalf of such party. Delay in exercising any right under this
\nAgreement shall not constitute a waiver of such right.<\/p>\n
-37-
\n 42<\/p>\n
ARTICLE VIII
\n GENERAL PROVISIONS<\/p>\n
8.1 Non-Survival of Representations and Warranties. The representations
\nand warranties of Seagate and Veritas contained in this Agreement shall
\nterminate at the Effective Time, and only the covenants and agreements that by
\ntheir terms survive the Effective Time shall survive the Effective Time.<\/p>\n
8.2 Notices. All notices and other communications hereunder shall be in
\nwriting and shall be deemed given if delivered personally or by commercial
\ndelivery service, or sent via facsimile (receipt confirmed) to the parties at
\nthe following addresses or facsimile numbers (or at such other address or
\nfacsimile numbers for a party as shall be specified by like notice):<\/p>\n
(a) if to Seagate, to:<\/p>\n
Seagate Technology, Inc.
\n 920 Disc Drive
\n Scotts Valley, California 95066
\n Attention: General Counsel
\n Facsimile No.: 831-438-6675
\n Telephone No.: 831-438-6550<\/p>\n
with copies to:<\/p>\n
Wilson Sonsini Goodrich & Rosati
\n Professional Corporation
\n 650 Page Mill Road
\n Palo Alto, California 94304-1050
\n Attention: Larry W. Sonsini, Esq.
\n Facsimile No.: 650-493-6811
\n Telephone No.: 650-493-9300<\/p>\n
and to:<\/p>\n
Wilson Sonsini Goodrich & Rosati
\n Professional Corporation
\n One Market Plaza
\n Spear Tower
\n San Francisco, California 94105
\n Attention: Michael J. Kennedy, Esq.
\n Facsimile No.: 415-947-2099
\n Telephone No.: 415-947-2000<\/p>\n
-38-
\n 43<\/p>\n
and to:<\/p>\n
Suez Acquisition Company (Cayman) Limited
\n c\/o Silver Lake Partners, L.P.
\n 2725 Sand Hill Road
\n Building C, Suite 950
\n Menlo Park, California 94025
\n Attention: Dave Roux
\n Facsimile: 650-233-8125
\n Telephone: 650-233-8121<\/p>\n
with a copy to:<\/p>\n
Simpson Thacher & Bartlett
\n 425 Lexington Avenue
\n New York, New York 10017-3954
\n Attention: William E. Curbow, Esq.
\n Facsimile: 212-455-2502
\n Telephone: 212-455-2000<\/p>\n
and to:<\/p>\n
TPG Partners, III, L.P.
\n 201 Main Street, Suite 2420
\n Fort Worth, Texas 76102
\n Attention: Richard A. Ekleberry, Esq.
\n Facsimile: 817-871-4010
\n Telephone: 817-871-4000<\/p>\n
with a copy to:<\/p>\n
Cleary, Gottlieb, Steen & Hamilton
\n One Liberty Plaza
\n New York, New York 10006
\n Attention: Paul J. Shim, Esq.
\n Facsimile: 212-225-3999
\n Telephone: 212-225-2000<\/p>\n
(b) if to Veritas, Merger Sub or the Surviving Corporation,
\n to:<\/p>\n
VERITAS Software Corporation
\n 1600 Plymouth Street
\n Mountain View, California 94043
\n Attention: General Counsel
\n Facsimile: 650-526-2581
\n Telephone: 650-335-8000<\/p>\n
-39-
\n 44<\/p>\n
with a copy to:<\/p>\n
Willkie Farr & Gallagher
\n 787 Seventh Avenue
\n New York, New York 10019
\n Attention: Michael A. Schwartz
\n Facsimile: 212-728-8111
\n Telephone: 212-728-8000<\/p>\n
8.3 Certain Interpretations.<\/p>\n
(a) When a reference is made in this Agreement to a Section or an
\nExhibit, such reference shall be to a Section or an Exhibit to this Agreement
\nunless otherwise indicated.<\/p>\n
(b) The words “include,” “includes” and “including” when used
\nherein shall be deemed in each case to be followed by the words “without
\nlimitation.”<\/p>\n
(c) The table of contents and headings contained in this
\nAgreement are for convenience of reference only and shall not affect in any way
\nthe meaning or interpretation of this Agreement, or any term or provision
\nhereof.<\/p>\n
(d) Reference to the subsidiaries of an entity shall be deemed to
\ninclude all direct and indirect subsidiaries of such entity.<\/p>\n
8.4 Counterparts. This Agreement may be executed in one or more
\ncounterparts, all of which shall be considered one and the same agreement and
\nshall become effective when one or more counterparts have been signed by each of
\nthe parties hereto and delivered to the other party hereto, it being understood
\nthat each party hereto need not sign the same counterpart.<\/p>\n
8.5 Entire Agreement. This Agreement and the documents and instruments
\nand other agreements among the parties hereto as contemplated by or referred to
\nherein, including the Seagate Disclosure Schedule and the Veritas Disclosure
\nSchedule (i) constitute the entire agreement among the parties with respect to
\nthe subject matter hereof and supersede all prior agreements and understandings,
\nboth written and oral, among the parties with respect to the subject matter
\nhereof, it being understood that the Confidentiality Agreement shall continue in
\nfull force and effect until the Closing and shall survive any termination of
\nthis Agreement, and (ii) except as is provided in Section 5.9 hereof, are not
\nintended to confer upon any other person any rights or remedies hereunder.<\/p>\n
8.6 Severability. In the event that any provision of this Agreement or
\nthe application thereof, becomes or is declared by a court of competent
\njurisdiction to be illegal, void or unenforceable, the remainder of this
\nAgreement will continue in full force and effect and the application of such
\nprovision to other persons or circumstances will be interpreted so as reasonably
\nto effect the intent of the parties hereto. The parties further agree to replace
\nsuch void or unenforceable provision of this Agreement with a valid and
\nenforceable provision that will<\/p>\n
-40-
\n 45<\/p>\n
achieve, to the extent possible, the economic, business and other purposes of
\nsuch void or unenforceable provision.<\/p>\n
8.7 Other Remedies; Specific Performance. Except as otherwise provided
\nherein, any and all remedies herein expressly conferred upon a party will be
\ndeemed cumulative with and not exclusive of any other remedy conferred hereby,
\nor by law or equity upon such party, and the exercise by a party of any one
\nremedy will not preclude the exercise of any other remedy. The parties hereto
\nagree that irreparable damage would occur in the event that any of the
\nprovisions of this Agreement were not performed in accordance with their
\nspecific terms or were otherwise breached. It is accordingly agreed that the
\nparties shall be entitled to an injunction or injunctions to prevent breaches of
\nthis Agreement and to enforce specifically the terms and provisions hereof in
\nany court of the United States or any state having jurisdiction, this being in
\naddition to any other remedy to which they are entitled at law or in equity.<\/p>\n
8.8 Governing Law. This Agreement shall be governed by and construed in
\naccordance with the laws of the State of Delaware, regardless of the laws that
\nmight otherwise govern under applicable principles of conflicts of law thereof.<\/p>\n
8.9 Rules of Construction. The parties hereto agree that they have been
\nrepresented by counsel during the negotiation and execution of this Agreement
\nand, therefore, waive the application of any law, regulation, holding or rule of
\nconstruction providing that ambiguities in an agreement or other document will
\nbe construed against the party drafting such agreement or document.<\/p>\n
8.10 Assignment. No party may assign either this Agreement or any of its
\nrights, interests, or obligations hereunder without the prior written approval
\nof the of the parties. Subject to the preceding sentence, this Agreement shall
\nbe binding upon and shall inure to the benefit of the parties hereto and their
\nrespective successors and permitted assigns.<\/p>\n
8.11 Waiver of Jury Trial. EACH OF VERITAS AND SEAGATE HEREBY
\nIRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
\nCOUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
\nRELATING TO THIS AGREEMENT OR THE ACTIONS OF VERITAS AND SEAGATE IN THE
\nNEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.<\/p>\n
[Remainder of Page Intentionally Left Blank]<\/p>\n
-41-
\n 46<\/p>\n
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
\nexecuted by their duly authorized respective officers, as of the date first
\nabove written.<\/p>\n
VERITAS SOFTWARE CORPORATION<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
VICTORY MERGER SUB, INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
SEAGATE TECHNOLOGY, INC.<\/p>\n
By:
\n ——————————
\n Name:
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