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 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
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of
Section 1(a) and Section 3 hereof, any
Shares Transfe
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