Exhibit 10.3
MAXTOR CORPORATION,
SEAGATE TECHNOLOGY,
SEAGATE TECHNOLOGY (US) HOLDINGS,
INC.
and
U.S. BANK NATIONAL
ASSOCIATION,
TRUSTEE
SECOND SUPPLEMENTAL
INDENTURE
Dated as of
June 1, 2009
Supplementing the Indenture dated as
of March 1, 1987,
as amended by the First Supplemental Indenture
dated as of January 11, 1996
The SECOND SUPPLEMENTAL INDENTURE,
dated as of June 1, 2009 (this “ Second
Supplemental Indenture ”), by and among MAXTOR
CORPORATION, a Delaware corporation (the “
Company ”), SEAGATE TECHNOLOGY, an exempted
company incorporated with limited liability under the laws of the
Cayman Islands (“ Parent ”), SEAGATE
TECHNOLOGY (US) HOLDINGS, INC., a Delaware corporation (“
Holdings ”), and U.S. BANK NATIONAL
ASSOCIATION, as Trustee (the “ Trustee
”).
RECITALS
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an indenture, dated as of
March 1, 1987 (the “ Indenture
”), as supplemented and amended by a Supplemental Indenture,
dated as of January 11, 1996 (the “ First
Supplemental Indenture ”), providing for the creation
and issuance by the Company of 5.75% Convertible Subordinated
Debentures due 2012 (the “ Securities
”).
WHEREAS, the Company is a wholly
owned direct subsidiary of Holdings, and Holdings is a wholly owned
indirect subsidiary of Parent;
WHEREAS, in accordance with
Section 801(1), the Company previously provided for conversion
rights in accordance with Section 1301 of the Indenture in the
First Supplemental Indenture;
WHEREAS, in accordance with
Section 1306, the Company previously provided notice to
Holders on April 28, 2006 regarding the merger of MD
Corporation, a Delaware corporation, with and into the Company,
whereby the Company continued as the surviving and continuing
corporation and became a wholly owned subsidiary of
Parent;
WHEREAS, the Company and Holdings
have entered into an Assignment and Assumption Agreement, dated as
of June 1, 2009 (the “ Assignment and Assumption
Agreement ”), by and between the Company and
Holdings, pursuant to which: (i) the Company will assign all
of the Company’s assets to Holdings (the “
Assignment ”); and (ii) Holdings will
assume the Company’s obligations under the Securities and the
Indenture (the “ Assumption
”);
WHEREAS, the Company, Parent and
Holdings have entered into an Agreement of Merger, dated as of
June 1, 2009 (the “ Merger
Agreement ”), by and among the Company, Parent and
Holdings, pursuant to which, immediately following the Assignment
and the Assumption: (i) the Company will merge with and into
Holdings (the “ Merger ”, and
together with the Assignment and the Assumption, the “
Transactions ”); (ii) Holdings will
continue as the surviving and continuing corporation and succeed to
and assume all the rights and obligations of the Company in
accordance with the Delaware General Corporation Law; and
(iii) Parent will unconditionally guarantee the obligations of
Holdings under the Securities and the Indenture, as supplemented
and amended by the First Supplemental Indenture;
WHEREAS, pursuant to
Section 801 of the Indenture, the Company, Parent, Holdings
and Trustee have agreed in connection with the Transactions to
execute this Second Supplemental Indenture to provide for
(i) the assumption by Holdings of the due and punctual payment
of the principal of and interest on all the Securities and the
performance of every covenant of the Indenture, as supplemented and
amended by the First Supplemental Indenture, on the part of the
Company to be performed or observed and (ii) the full and
unconditional guaranty by Parent of Holdings’ obligations to
the Holders of the Securities;
WHEREAS, Section 901(1) of the
Indenture provides that the parties hereto may execute this Second
Supplemental Indenture without the consent of the Holders of the
Securities;
WHEREAS, in accordance with
Section 1306 of the Indenture, the Company issued notice to
Holders regarding the Transactions at least 20 days prior to the
date hereof;
WHEREAS, in accordance with
Section 903 of the Indenture, the Trustee is authorized to
execute and deliver this Second Supplemental Indenture;
WHEREAS, in accordance with
Section 801(1) of the Indenture, Holdings is a corporation
organized and existing under the laws of the state of
Delaware;
WHEREAS, in accordance with
Section 801(2) of the Indenture, immediately after giving
effect to the Transactions, no event of default under the Indenture
and no event which, after notice or lapse of time or both, would
become an event of default under the Indenture, has occurred;
and
WHEREAS, in accordance with
Sections 102 and 801(3) of the Indenture, as supplemented and
amended by the First Supplemental Indenture, the Trustee has
received an Officers’ Certificate and an Opinion of Counsel
of the Company relating to the Transactions and this Second
Supplemental Indenture.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company, Parent,
Holdings and the Trustee, acting for itself
