Exhibit 99.1
SEAGATE TECHNOLOGY HDD
HOLDINGS
$300,000,000 FLOATING RATE SENIOR
NOTES DUE 2009
$600,000,000 6.375% SENIOR NOTES
DUE 2011
$600,000,000 6.800% SENIOR NOTES
DUE 2016
UNDERWRITING
AGREEMENT
September 15, 2006
September 15, 2006
To the Representatives named in
Schedule I hereto
for the Underwriters named in Schedule II
hereto
Ladies and Gentlemen:
Seagate Technology HDD Holdings, an
exempted limited liability company incorporated under the laws of
the Cayman Islands (the “ Company ”), proposes
to issue and sell to the several underwriters named in
Schedule II hereto (the “ Underwriters ”),
for whom you are acting as representatives (the “
Representatives ”), $300,000,000 principal amount of
its Floating Rate Senior Notes due 2009 (the “ 2009
Notes ”), $600,000,000 principal amount of its 6.375%
Senior Notes due 2011 (the “ 2011 Notes ”) and
$600,000,000 principal amount of its 6.800% Senior Notes due 2016
(the “ 2016 Notes ” and together with the 2009
Notes and the 2011 Notes, the “ Securities ”) as
identified in Schedule III hereto, to be issued under the
indenture specified in Schedule I hereto (the “
Indenture ”) between the Company and the Trustee
identified in such Schedule (the “ Trustee
”). The Securities are to be guaranteed (the “
Guarantee ”) by Seagate Technology, an exempted
limited liability company incorporated under the laws of the Cayman
Islands (“ Parent ”). If the firm or firms
listed in Schedule II hereto include only the Representatives
listed in Schedule I hereto, then the terms
“Underwriters” and “Representatives” as
used herein shall each be deemed to refer to such firm or
firms.
Parent and the Company have filed
with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus (the file number of which is set forth in
Schedule I hereto), on Form S-3 relating to the
Securities. The registration statement as amended to the date of
this Agreement, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 430B under the Securities
Act of 1933, as amended (the “ Securities Act
”), is hereinafter referred to as the “ Registration
Statement ,” and the related prospectus covering the
Securities dated September 15, 2006 in the form first used to
confirm sales of the Securities (or in the form first made
available to the Underwriters by Parent and the Company to meet
requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “
Prospectus .” The term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. For purposes of this Agreement, “ free writing
prospectus ” has the meaning set forth in Rule 405
under the Securities Act, “ Time of Sale Prospectus
” means the preliminary prospectus together with the free
writing prospectuses and other items identified in Schedule I
hereto, and “ broadly available road show ”
means a “bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made
available without restriction to any person. As used herein, the
terms “Registration Statement,” “preliminary
prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall
include the documents, if any, incorporated by
reference therein. The terms “ supplement ,”
“ amendment ,” and “ amend ”
as used herein with respect to the Registration Statement, the Time
of Sale Prospectus, any preliminary prospectus or free writing
prospectus shall include all documents subsequently filed by Parent
or the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), that are deemed to be incorporated by reference
therein.
1. Representations and
Warranties . Each of Parent and the Company jointly and
severally represents and warrants to and agrees with each of the
Underwriters that:
(a) The Registration Statement is
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose or pursuant to Section 8A of the Securities Act are
pending before or, to the knowledge of Parent and the Company,
threatened by the Commission. Parent is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act),
Parent and the Company are eligible to use the Registration
Statement as an automatic shelf registration statement and neither
Parent nor the Company has received notice that the Commission
objects to the use of the Registration Statement as an automatic
shelf registration statement.
(b) (i) Each document, if any,
filed or to be filed pursuant to the Exchange Act and incorporated
by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement as of the date hereof does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iv) the Registration Statement and
the Prospectus comply, and as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does
not, and at the time of each sale of the Securities in connection
with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or
supplemented by Parent and the Company, if applicable, will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, (vi) each broadly available road show, if any,
when considered together with the Time of Sale Prospectus, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements
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therein, in the light of the circumstances under
which they were made, not misleading and (vii) the Prospectus
does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to Parent and the Company in writing by such
Underwriter through the Representatives expressly for use therein
or (B) that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”), of the Trustee.
(c) Neither the Company nor Parent
is an “ineligible issuer” in connection with the
offering of the Securities and the Guarantee pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free
writing prospectus that Parent or the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or
will be, filed with the Commission in accordance with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that Parent or the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or on behalf of or used or referred to by the
Company or Parent complies or will comply in all material respects
with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Except for the
free writing prospectuses, if any, identified in Schedule I
hereto, and electronic road shows, if any, each furnished to you
before first use, neither the Company nor Parent prepared, used or
referred to, and will not, without your prior consent, prepare, use
or refer to, any free writing prospectus.
(d) Each of Parent and the Company
has been duly incorporated, is validly existing as an exempted
limited liability company in good standing under the laws of the
Cayman Islands, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on Parent and its subsidiaries, taken as a whole.
(e) Each subsidiary of Parent (other
than the Company) has been duly incorporated, is validly existing
as a corporation, limited liability company or other similar entity
in good standing under the laws of the jurisdiction of its
organization, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and is duly
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qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on Parent and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each subsidiary of Parent have
been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares)
are owned directly or indirectly by Parent, free and clear of all
liens, encumbrances, equities or claims.
(f) This Agreement has been duly
authorized, executed and delivered by each of the Company and
Parent.
(g) The Indenture has been duly
qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, each of the Company and Parent, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights
generally and equitable principles of general
applicability.
(h) The Securities have been duly
authorized and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement,
will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of
general applicability, and will be entitled to the benefits of the
Indenture.
(i) The Guarantee has been duly
authorized and, when the Securities are executed and authenticated
in accordance with the provisions of the Indenture, and delivered
to and paid for by the Underwriters in accordance with the terms of
this Agreement, will be valid and binding obligations of Parent, in
each case enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and equitable
principles of general applicability, and will be entitled to the
benefits of the Indenture.
(j) The execution and delivery by
Parent of, and the performance by Parent of its obligations under,
this Agreement and the Indenture (including the Guarantee) will not
contravene any provision of applicable law (except for such
contraventions of applicable law that would not reasonably be
expected to have a material adverse effect on Parent and its
subsidiaries, taken as a whole, or on the power or ability of
Parent to perform its obligations under this Agreement), or the
memorandum and articles of association of Parent or any agreement
or other instrument binding upon Parent or any of its subsidiaries
that is material to Parent and its subsidiaries, taken as a whole,
or any judgment, order
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or decree of any governmental body, agency or
court having jurisdiction over Parent or any of its subsidiaries
(except for contraventions of any such judgment, order or decree
that would not reasonably be expected to have a material adverse
effect on Parent and its subsidiaries, taken as a whole, or on the
power or ability of Parent to perform its obligations under this
Agreement), and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by Parent of its obligations under this Agreement
or the Indenture, except such as (i) have been obtained prior
to the Closing Date, (ii) may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Securities or (iii) the failure of which to
obtain would not reasonably be expected to have a material adverse
effect on the power or ability of Parent to perform its obligations
under this Agreement.
(k) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and the
Securities, if any, will not contravene any provision of applicable
law (except for such contraventions of applicable law that would
not reasonably be expected to have a material adverse effect on
Parent and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under this
Agreement), or the memorandum and articles of association of the
Company or any agreement or other instrument binding upon the
Company that is material to the Parent and its subsidiaries, taken
as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company (except
for contraventions of any such judgment, order or decree that would
not reasonably be expected to have a material adverse effect on
Parent and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under this
Agreement), and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement or the Indenture, except such as (i) have been
obtained prior to the Closing Date, (ii) may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities or (iii) the failure
of which to obtain would not reasonably be expected to have a
material adverse effect on the power or ability of the Company to
perform its obligations under this Agreement.
(l) There has been no material
adverse change, or, to the knowledge of the Company or Parent, any
development involving a prospective material adverse change, in the
financial condition or in the earnings, business affairs or
management of Parent and its Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, from
that set forth in the Time of Sale Prospectus (exclusive of any
amendments or supplements thereto subsequent to the time of the
first sale of the Securities).
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(m) There are no legal or
governmental actions, suits or proceedings pending or, to
Parent’s knowledge, threatened to which Parent or any of its
subsidiaries is a party or to which any of the properties of Parent
or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Time of Sale
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Time of Sale Prospectus or to be
filed as exhibits to the Registration Statement that are not
described or filed as required.
(n) The financial statements
included in the Registration Statement or the Time of Sale
Prospectus present fairly in all material respects the financial
position of the entities purported to be covered as of the dates
shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis (except, in each case,
that the summary and the selected historical consolidated financial
information of Parent does not include the notes to the
consolidated financial statements that would appear if full
financial statements had been presented for Parent); the unaudited
pro forma consolidated financial statements comply as to form in
all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X; and the assumptions underlying
the pro forma financial statements are reasonable and are included
in the Registration Statement and the Time of Sale
Prospectus.
(o) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to
Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(p) Neither the Company nor Parent
is, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described
in the Time of Sale Prospectus will be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(q) Parent and its subsidiaries
(i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on Parent and its subsidiaries, taken as a
whole.
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(r) Except as disclosed in the Time
of Sale Prospectus, there are no costs or liabilities associated
with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect
on Parent and its subsidiaries, taken as a whole.
(s) Subsequent to the respective
dates as of which information is given in the Registration
Statement and the Time of Sale Prospectus, (i) neither Parent
nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business;
(ii) neither the Company nor Parent has purchased any of its
outstanding share capital, nor declared, paid or otherwise made any
dividend or distribution of any kind on its share capital other
than ordinary and customary dividends; and (iii) there has not
been any material change in the share capital or capital stock or
long-term debt of Parent or any of its subsidiaries, except
(A) in the case of each of (i), (ii) and
(iii) above, as described in the Time of Sale Prospectus and
(B) in the case of purchases of or changes in share capital,
pursuant to Parent’s ongoing share repurchase program
described in the Time of Sale Prospectus.
(t) Parent and its subsidiaries have
good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them
which is material to the business of Parent and its subsidiaries,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Time of Sale Prospectus, such
as do not materially interfere with the use made and proposed to be
made of such property by Parent and its subsidiaries or such as
would not reasonably be expected to have a material adverse effect
on Parent and its subsidiaries, taken as a whole; and any real
property and buildings held under lease by Parent and its
subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by Parent and its subsidiaries, in each case
except as described in the Time of Sale Prospectus.
(u) Except as disclosed in the
Registration Statement and the Time of Sale Prospectus, Parent and
its subsidiaries own or possess, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names and
other intellectual property currently employed by them in
connection with the business now
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operated by them, and neither Parent nor, to the
knowledge of Parent, any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a material adverse
effect on Parent and its subsidiaries, taken as a whole.
(v) No material labor dispute with
the employees of Parent or any of its subsidiaries exists, except
as described in the Time of Sale Prospectus, or, to the knowledge
of Parent or the Company, is imminent.
(w) Parent and its subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; neither
Parent nor any of its subsidiaries has been refused any insurance
coverage sought or applied for, other than as would not reasonably
be expected to have a material adverse effect on Parent and its
subsidiaries, taken as a whole; and neither Parent nor any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a material adverse effect on Parent and its subsidiaries, taken as
a whole, except as described in the Time of Sale
Prospectus.
(x) Parent and its subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses except such as the
failure of which to obtain would not reasonably be expected to have
a material adverse effect on Parent and its subsidiaries, taken as
a whole, and neither Parent nor, to the knowledge of Parent, any of
its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on Parent and its subsidiaries,
taken as a whole, except as described in the Time of Sale
Prospectus.
(y) Parent and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
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(z) Each periodic report containing
financial statements filed with the Commission by Parent since
June 30, 2006 pursuant to Section 13(a) of the Exchange
Act complied with the requirements of such section and the
information in such reports fairly presented, in all material
respects, the financial condition and results of operations of
Parent, as of the date of each such filing.
(aa) Parent is aware of no reason
that its Quarterly Report on Form 10-Q for the quarter ended
September 29, 2006 would not be accompanied by the
certifications required to be filed or submitted by the
Company’s chief executive officer and chief financial officer
pursuant to the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder.
2. Agreements to Sell and
Purchase . The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly,
to purchase from the Company the respective principal amounts of
Securities set forth in Schedule II hereto opposite its name
at the purchase price set forth in Schedule I
hereto.
3. Public Offering . Each of
Parent and the Company is advised by you that the Underwriters
propose to make a public offering of their respective portions of
the Securities as soon after this Agreement has become effective as
in your judgment is advisable. Each of Parent and the Company is
further advised by you that the Securities are to be offered to the
public upon the terms set forth in the Prospectus.
4. Payment and Delivery .
Payment for the Securities shall be made to the Company in Federal
same-day funds to the account specified by the Company to the
Underwriters. The time and date of the delivery of the Securities
and such payment shall be the closing date and time set forth in
Schedule I hereto, or at such other time on the same or
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