Exhibit 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of
December 20, 2005 by and between Maxtor Corporation, a
Delaware corporation (“ Maxtor ”), and each of
the undersigned stockholders listed on the signature page hereto
(each, a “ Stockholder ” and collectively, the
“ Stockholders ”) of Seagate Technology, an
exempted company incorporated with limited liability under the laws
of the Cayman Islands (“ Seagate ”).
WHEREAS, Maxtor, Seagate and MD
Merger Corporation, a Delaware corporation and a direct wholly
owned subsidiary of Seagate (“ Merger Sub ”),
have entered into an Agreement and Plan of Merger of even date
herewith (the “ Merger Agreement ”), pursuant to
which Merger Sub will be merged with and into Maxtor (the “
Merger ”), all capital stock of Maxtor outstanding
immediately prior to the effective time of the Merger will be
converted into and thereafter represent solely the right to receive
the consideration set forth in the Merger Agreement and Maxtor will
survive as a wholly owned subsidiary of Seagate.
WHEREAS, as a condition to its
willingness to enter into the Merger Agreement, Maxtor has required
that each of the Stockholders enter into this Agreement.
WHEREAS, each Stockholder has agreed
that certain shares of Seagate Common Stock owned by it shall be
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, intending to be
legally bound, the parties hereto hereby agree as
follows:
1. Certain Definitions .
Capitalized terms that are used but not otherwise defined herein
shall have the respective meanings ascribed to them in the Merger
Agreement. For purposes of this Agreement, the following terms
shall have the following respective meanings:
(a) “ Exempt Transfer
” shall mean (i) any Transfer or other granting of an
economic or other pecuniary interest in or to Seagate Common Stock
(pursuant to the granting of an option, derivative interest or
other similar arrangement), provided that the Stockholder or other
transferor of such Seagate Common Stock retains all voting rights
in respect of any such Seagate Common Stock (which voting rights
remain subject to the voting obligations set forth in this
Agreement), (ii) any Transfer effected through an open market
sale transaction, (iii) any Transfer made to a Person in
direct contemplation of an open market sale transaction (including
a “block trade” to a broker-dealer or other similar
transaction), or (iv) any Transfer (other than to Persons who
are affiliates of a party to this Agreement on the date hereof or
the date of Transfer) by a Stockholder to its stockholders,
partners or members in the form of pro rata dividends or
distributions, whether upon liquidation or otherwise, of Seagate
Common Stock that is immediately tradable in the hands of the
transferee in open market sale transactions. For purposes of the
foregoing, “open market sale transaction” shall mean
any open market sale transaction effected pursuant to (A) an
effective registration statement covering such sale of shares of
Seagate Common
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Stock that are the subject of such Transfer,
(B) an applicable exemption from the registration and
prospectus delivery requirements of the Securities Act of 1933, as
amended (the “ Securities Act ”), that applies
to open market sale transactions by a Person other than the issuer
of securities, or (C) Rule 144 promulgated under the
Securities Act.
(b) “ Expiration Time
” shall mean the earlier to occur of (i) such date and
time as the Merger Agreement shall have been terminated in
accordance with its terms, (ii) the Effective Time, and
(iii) the date of any modification, waiver or amendment to the
Merger Agreement in a manner that increases the Exchange
Ratio.
(c) “ Person ”
shall mean any individual, corporation, limited liability company,
general or limited partnership, business trust, unincorporated
association or other business organization or entity, or any
governmental body or authority.
(d) “ Shares ”
shall mean any and all voting securities of Seagate beneficially
owned by the Stockholder as of the record date (whether now owned
or hereafter acquired) for every meeting of stockholders of Seagate
called with respect to the Proposal (as defined below), and every
postponement or adjournment thereof. With respect to Shares
beneficially owned by James G. Coulter, such Shares shall not be
deemed to include Shares owned directly by SAC Investment, L. P.
(which Shares are covered by the counterpart of this agreement
entered into directly by SAC Investment, L. P.).
(e) Transfer . A Person shall
be deemed to have effected a “ Transfer ” of a
security if such person directly or indirectly (i) sells,
pledges, encumbers, grants an option with respect to, transfers or
disposes of such security or any interest in such security, or
(ii) enters into an agreement or commitment providing for the
sale of, pledge of, encumbrance of, grant of an option with respect
to, transfer of or disposition of such security or any interest
therein.
2. Transfer of Shares . Such
Stockholder hereby agrees that, other than pursuant to the terms of
this Agreement, at all times during the period commencing with the
execution and delivery of the Merger Agreement and continuing until
the Expiration Time, the Stockholder shall not, directly or
indirectly, (a) grant any proxies or enter into any voting
trust or other agreement or arrangement that would transfer, limit
or otherwise affect the rights of the Stockholder with respect to
the voting of any Shares in respect of the Proposal (as defined
below), or (b) Transfer (other than in an Exempt Transfer) any
shares of Seagate Common Stock (or any securities convertible into
or exercisable or exchangeable for shares of Seagate Common Stock)
beneficially owned by such Stockholder as of the date hereof or
hereafter acquired, or any interest in the foregoing, unless each
Person to which any such shares (or any securities convertible into
or exercisable or exchangeable for any such shares), or any
interest in any of the foregoing, is or may be Transferred shall
have (a) executed a counterpart of this Agreement (with such
modifications as Maxtor may reasonably request), and
(b) agreed in writing to hold such shares (or any securities
convertible into or exercisable or exchangeable for any such
shares), or such interest in the foregoing, subject to the terms
and conditions of this Agreement. Any Transfer or purported
Transfer (other than an Exempt Transfer) of shares of Seagate
Common Stock in violation of the foregoing restrictions
shall
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be null and void. The parties hereto expressly
acknowledge and hereby agree that the foregoing restrictions on
Transfer shall not apply to any Exempt Transfer and, subject to the
retention of voting rights by the Stockholder, where applicable in
accordance with the terms of Section 1(a) and
Section 3 hereof, any Shares Transferred in an Exempt
Transfer shall no longer be subject to the terms and conditions of
this Agreement for any purpose.
3. Agreement to Vote Shares .
The Stockhold
