<PAGE> 1
EXHIBIT 2.2
FORM OF SEPARATION AND REDEMPTION AGREEMENT
AMONG
QUANTUM CORPORATION,
INSULA CORPORATION
AND
MAXTOR CORPORATION
EFFECTIVE AS OF
___________, 200__
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TABLE OF CONTENTS
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ARTICLE I SEPARATION.........................................................................2
Section 1.1 Separation Date........................................................2
Section 1.2 Closing of Transactions................................................2
Section 1.3 Exchange of Secretary's Certificates...................................2
ARTICLE II DOCUMENTS AND ITEMS TO BE DELIVERED ON THE SEPARATION DATE........................2
Section 2.1 Documents to Be Delivered By Company...................................2
Section 2.2 Documents to Be Delivered by Spinco....................................3
ARTICLE III THE REDEMPTION...................................................................3
Section 3.1 The Redemption.........................................................3
Section 3.2 Condition To Redemption................................................4
ARTICLE IV COVENANTS AND OTHER MATTERS.......................................................4
Section 4.1 Other Agreements.......................................................4
Section 4.2 Further Instruments....................................................4
Section 4.3 Agreement For Exchange of Information..................................5
Section 4.4 No Representation or Warranty..........................................6
Section 4.5 Employee Agreements....................................................6
Section 4.6 Cooperation in Obtaining New Agreements................................7
ARTICLE V MISCELLANEOUS......................................................................8
Section 5.1 Limitation of Liability................................................8
Section 5.2 Entire Agreement.......................................................8
Section 5.3 Acknowledgment.........................................................8
Section 5.4 Governing Law..........................................................8
Section 5.5 Termination............................................................8
Section 5.6 Amendment..............................................................9
Section 5.7 Notices................................................................9
Section 5.8 Interpretation........................................................10
Section 5.9 Counterparts..........................................................10
Section 5.10 No Third Party Beneficiaries..........................................11
Section 5.11 Severability..........................................................11
Section 5.12 Other Remedies; Specific Performance..................................11
Section 5.13 Assignment............................................................11
ARTICLE VI DEFINITIONS......................................................................11
Section 6.1 Ancillary Agreements..................................................11
Section 6.2 Assignment Agreement..................................................11
Section 6.3 Code..................................................................11
Section 6.4 Employee Agreement....................................................11
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TABLE OF CONTENTS
(CONTINUED)
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Section 6.5 Exchange Agent........................................................12
Section 6.6 Governmental Authority................................................12
Section 6.7 HDD Business..........................................................12
Section 6.8 HDD Common Stock......................................................12
Section 6.9 Information...........................................................12
Section 6.10 Merger Agreement......................................................12
Section 6.11 Person................................................................12
Section 6.12 Redemption............................................................12
Section 6.13 Separation............................................................12
Section 6.14 Separation Date.......................................................12
Section 6.15 Spinco Common Stock...................................................12
Section 6.16 Subsidiary............................................................12
Section 6.17 WSGR..................................................................13
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SEPARATION AND REDEMPTION AGREEMENT
This Separation and Redemption Agreement (this "AGREEMENT") is entered
into as of ___________, 200__ among Quantum Corporation, a Delaware corporation
("COMPANY"), Insula Corporation, a Delaware corporation ("SPINCO"), and Maxtor
Corporation, a Delaware corporation ("MAXTOR"). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms in
Article VI hereof.
RECITALS
WHEREAS, the Boards of Directors of Company and Spinco have each
determined that it would be appropriate and desirable for Company to contribute
and transfer to Spinco, and for Spinco to receive and assume, directly or
indirectly, the assets and liabilities currently associated with the HDD
Business as more completely described in the General Assignment and Assumption
Agreement among the parties hereto dated the date hereof and to cause the
Subsidiaries of the Company that conduct such business to transfer the assets
and liabilities they hold that are associated with the HDD Business to
corresponding Subsidiaries of Spinco (the "SEPARATION");
WHEREAS, Company has caused Spinco and its Subsidiaries to be
incorporated in order to effect the Separation;
WHEREAS, following the transfer and assumption of such assets and
liabilities to Spinco and immediately prior to and in connection with the merger
of Spinco with and into Maxtor (the "MERGER"), Company will redeem from the
holders of its HDD Common Stock all outstanding shares of HDD Common Stock in
exchange for Spinco Common Stock (the "REDEMPTION") in accordance with Section
2.4 of the Company's Restated Certificate of Incorporation and the Amended and
Restated Merger Agreement among the parties hereto and a wholly owned subsidiary
of Maxtor Corporation dated as of October 3, 2000 (the "MERGER AGREEMENT");
WHEREAS, Company and Spinco intend the contribution and assumption of
assets and liabilities and the Redemption to qualify as a tax-free
reorganization under Sections 368 and 355 of the Internal Revenue Code of 1986,
as amended (the "CODE"), and that this Agreement be a plan of reorganization
under Sections 1.368-2(g) and 1.368-3(a) of the Code; and
WHEREAS, the parties intend in this Agreement, including the Exhibits
and Schedules hereto, to set forth the principal arrangements between them
regarding the separation of the HDD Business from the Company.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
<PAGE> 5
ARTICLE I
SEPARATION
SECTION 1.1 SEPARATION DATE. Unless otherwise provided in this
Agreement, or in any agreement to be executed in connection with this Agreement,
the effective time and date of each transfer of property, assumption of
liability, license, undertaking, or agreement in connection with the Separation
shall be immediately prior to the Effective Time or on such other date as may be
agreed upon between the Company and Maxtor (the "SEPARATION DATE").
SECTION 1.2 CLOSING OF TRANSACTIONS. Unless otherwise provided herein,
the closing of the transactions contemplated in Article II shall occur by the
lodging of each of the executed instruments of transfer, assumptions of
liability, undertakings, agreements, instruments or other documents executed or
to be executed with Wilson Sonsini Goodrich & Rosati ("WSGR"), 650 Page Mill
Road, Palo Alto, California 94304, to be held in escrow for delivery as provided
in Section 1.3 of this Agreement.
SECTION 1.3 EXCHANGE OF SECRETARY'S CERTIFICATES. Upon receipt of a
certificate of the Secretary or an Assistant Secretary of Company substantially
in the form attached to the Merger Agreement as Exhibit E, WSGR shall deliver to
Spinco on behalf of Company all of the items required to be delivered by Company
hereunder pursuant to Section 2.1 of this Agreement and each such item shall be
deemed to be delivered to Spinco as of the Separation Date upon delivery of such
certificate. Upon receipt of a certificate of the Secretary or an Assistant
Secretary of Spinco in substantially the form attached to the Merger Agreement
as Exhibit F, WSGR shall deliver to Company on behalf of Spinco all of the items
required to be delivered by Spinco hereunder and each such item shall be deemed
to be delivered to Company as of the Separation Date upon receipt of such
certificate.
ARTICLE II
DOCUMENTS AND ITEMS TO BE DELIVERED ON THE SEPARATION DATE
SECTION 2.1 DOCUMENTS TO BE DELIVERED BY COMPANY. On the Separation Date
or such later date as Company and Maxtor agree, Company will deliver, or will
cause its appropriate Subsidiaries to deliver, to Spinco all of the following
items and agreements (collectively, together with all agreements and documents
contemplated by such agreements, the "ANCILLARY AGREEMENTS"):
(a) A duly executed General Assignment and Assumption Agreement
(the "ASSIGNMENT AGREEMENT") substantially in the form attached to the Merger
Agreement as Schedule 1;
(b) A duly executed Tax Sharing Agreement substantially in the
form attached to the Merger Agreement as Schedule 3;
(c) A duly executed Transitional Services Agreement substantially
in the form to the Merger Agreement as Schedule 4;
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(d) A duly executed Intellectual Property Agreement
substantially in the form attached to the Merger Agreement as Schedule 5;
(e) A duly executed Indemnification Agreement substantially in
the form attached to the Merger Agreement as Schedule 6;
(f) Resignations from their positions with Spinco and its
Subsidiaries of each person who is an officer or director of Spinco or its
Subsidiaries, immediately prior to the Separation Date and who will be employees
of Company or its Subsidiaries (but not Spinco or its Subsidiaries) from and
after the Separation Date;
(g) Resignations from their positions with the Company and its
Subsidiaries of each person who is an officer or director of the Company or its
Subsidiaries immediately prior to the Separation Date, and who will be employees
of Spinco or its Subsidiaries (but not Company or its Subsidiaries) from and
after the Separation Date; and
(h) Such other agreements, documents or instruments as the
parties may agree are necessary or desirable in order to achieve the purposes
hereof.
SECTION 2.2 DOCUMENTS TO BE DELIVERED BY SPINCO. As of the Separation
Date, Spinco will or will cause its appropriate Subsidiaries to deliver to
Company all of the following: in each case where Spinco is a party to any
agreement or instrument referred to in Section 2.1, a duly executed counterpart
of such agreement or instrument.
ARTICLE III
THE REDEMPTION
SECTION 3.1 THE REDEMPTION.
(a) Delivery of Shares for Redemption. Subject to Section 3.2
hereof, immediately prior to the Effective Time of the Merger and prior to the
date the Redemption is effective (the "REDEMPTION DATE"), Parent and Spinco
shall make available to the exchange agent appointed by the Company for purposes
of exchange (the "EXCHANGE AGENT"), the certificates representing Spinco Common
Stock (which may be in book entry form). Company shall cause the Exchange Agent
to redeem on the Redemption Date the appropriate number of shares of HDD Common
Stock from each holder thereof, and to make available to each such holder or
designated transferee or transferees of such holder shares of Spinco Common
Stock in exchange therefor.
(b) Shares Received. Subject to Section 3.2 hereof, each holder
of HDD Common Stock on the Record Date (or such holder's designated transferee
or transferees) will be entitled to receive in the Redemption one share of
Spinco Common Stock for each share of HDD Common Stock held.
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(c) Obligation to Provide Information. Company and Spinco, as
the case may be, will provide to the Exchange Agent any information required in
order to complete the Redemption on the basis specified above.
SECTION 3.2 CONDITION TO REDEMPTION. As a condition to the consummation
of the Redemption, Company and Maxtor shall have determined that all of the
conditions in Article VII of the Merger Agreement to the obligation of Company
and Spinco to effect the Merger have been, or will be immediately after the
Redemption, satisfied, so that the Merger can be effected immediately following
the Redemption.
ARTICLE IV
COVENANTS AND OTHER MATTERS
SECTION 4.1 OTHER AGREEMENTS. In addition to the specific agreements,
documents and instruments annexed to this Agreement, Company and Spinco agree to
execute and cause their respective Subsidiaries to execute and use commercially
reasonable efforts to cause third parties to execute and deliver, as
appropriate, such other agreements, instruments and other documents as may be
necessary or desirable in order to effect the purposes of this Agreement and the
Ancillary Agreements. At the request of Maxtor, Company shall negotiate in good
faith and enter into a nonexclusive agreement with Spinco and Maxtor pursuant to
which Company shall supply Maxtor and Spinco with HDD Products (as defined in
the Intellectual Property Agreement) on Maxtor's and Spinco's specifications and
otherwise on terms and conditions reasonably requested by Maxtor.
SECTION 4.2 FURTHER INSTRUMENTS. At the request of Spinco and without
further consideration, Company will execute and deliver, and will cause its
applicable Subsidiaries to execute and deliver, to Spinco and its Subsidiaries
all instruments of transfer, conveyance, assignment, substitution and
confirmation and take such action as Spinco may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to Spinco and
its Subsidiaries and confirm Spinco's and its Subsidiaries' title to all of the
assets, rights and other things of value contemplated to be transferred to
Spinco and its Subsidiaries pursuant to this Agreement, the Ancillary
Agreements, and any documents referred to therein, to put Spinco and its
Subsidiaries in actual possession and operating control thereof, to permit
Spinco and its Subsidiaries to exercise all rights with respect thereto
(including, without limitation, rights under contracts and other arrangements as
to which the consent of any third party to the transfer thereof shall not have
previously been obtained) and to complete the transactions contemplated hereby.
At the request of Company and without further consideration, Spinco and its
Subsidiaries will execute and deliver, and will cause its applicable
Subsidiaries to execute and deliver, to Company and its Subsidiaries all
instruments, assumptions, novations, undertakings, substitutions or other
documents and take such other action as Company may reasonably deem necessary or
desirable in order to have Spinco and its Subsidiaries fully and unconditionally
assume and discharge the liabilities contemplated to be assumed by Spinco and
its Subsidiaries under this Agreement or any document in connection herewith and
to relieve the Company and any of its Affiliated Companies or Subsidiaries of
any liability or obligation with respect thereto, to evidence the same to third
parties and to effect completely the transactions contemplated
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hereby. Neither Company nor Spinco shall be obligated, in connection with the
foregoing, to expend money other than reasonable out-of-pocket expenses,
attorneys' fees and recording or similar fees.
SECTION 4.3 AGREEMENT FOR EXCHANGE OF INFORMATION. Company and Spinco
each agree to provide, or cause to be provided, to each other, at any time
before or after the Redemption Date, as soon as reasonably practicable after
written request therefor, any Information in the possession or under the control
of such party that the requesting party reasonably needs (i) to comply with
reporting, disclosure, filing or other requirements imposed on the requesting
party (including under applicable securities laws) by a Governmental Authority
having jurisdiction over the requesting party, (ii) for use in any other
judicial, regulatory, administrative or other proceeding or in order to satisfy
audit, accounting, claims, regulatory, litigation or other similar requirements,
(iii) to comply with its obligations under this Agreement or any Ancillary
Agreement or (iv) in connection with the ongoing businesses of Company, on the
one hand, or Spinco or Maxtor, on the other hand, as the case may be; provided,
however, that in the event that any party determines that any such provision of
Information could be commercially detrimental, violate any law or agreement, or
waive any attorney-client privilege, the parties shall take all reasonable
measures to comply with such obligations in a manner that avoids any such harm
or consequence.
(a) Limitation of Liability. No party shall have any liability
to any other party in the event that any Information exchanged or provided
pursuant to this Section 4.3 is found to be inaccurate, in the absence of
willful misconduct by the party providing such Information. No party shall have
any liability to any other party if any Information is destroyed or lost after
reasonable commercial efforts by such party to comply with the provisions of
this Section 4.3 and its documentation retention policies which provide for all
Information to be retained for a minimum of two (2) years (or if any party does
not have such policies, policies that it intends to adopt effective as of the
Redemption Date) as may be amended or modified after 60 days' notice to Spinco
(in the case of Parent or its Subsidiaries or Affiliated Companies) and Parent
(in the case of Spinco or its Subsidiaries).
(b) Other Agreements Providing For Exchange of Information. The
rights and obligations granted under this Section 4.3 are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of Information set forth in this Agreement
and any Ancillary Agreement.
(c) Production of Witnesses; Records; Cooperation. After the
Redemption Date, except in the case of a legal or other proceeding by one party
against another party (which shall be governed by such discovery rules as may be
applicable), each party hereto shall use its reasonable commercial efforts to
make available to each other party, upon written request, the former, current
and future directors, officers, employees, other personnel and agents of such
party as witnesses and any books, records or other documents within its control
or which it otherwise has the ability to make available, to the extent that any
such person (giving consideration to business demands of such directors,
officers, employees, other personnel and agents) or such books, records or other
documents may reasonably be required in connection with any legal,
administrative or other proceeding in which the requesting party may from time
to time be involved, regardless of whether such legal, administrative or other
proceeding is a
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matter with respect to which indemnification may be sought hereunder. The
requesting party shall bear actual costs and expenses incurred by the producing
party in connection therewith.
SECTION 4.4 NO REPRESENTATION OR WARRANTY. Company does not, in this
Agreement or any other agreement, instrument or document contemplated by this
Agreement, make any representation as to, warranty of or covenant with respect
to:
(a) the absence of defenses or freedom from counterclaims with
respect to any claim to be transferred to Spinco; or
(b) the legal sufficiency of any assignment, document or
instrument delivered hereunder to convey title to any asset or thing of value
upon its execution, deliver and filing.
SECTION 4.5 EMPLOYEE AGREEMENTS. Definition. As used in this Section
4.5, "EMPLOYEE AGREEMENT" means the Agreement Regarding Confidential Information
and Proprietary Developments and corresponding agreements in foreign countries
which Company customarily has required employees to sign as they become
employees of the Company.
(a) Survival of Company Employee Agreement Obligations and
Company's Common Law Rights. The Company Employee Agreements of all former
employees of the Company and its Subsidiaries who become employees of Spinco or
its Subsidiaries as of the Separation Date shall remain in full force and effect
according to their terms; provided, however, that none of the following acts
committed by former employees of the Company and its Subsidiaries within the
scope of their employment with Spinco or its Subsidiaries shall constitute a
breach of such Company Employee Agreements: (i) the use or disclosure of
Confidential Information (as that term is defined in the former employee's
Company Employee Agreement) for or on behalf of Spinco or its Subsidiaries, if
such disclosure is consistent with the license rights granted to Spinco or its
Subsidiaries and restrictions imposed on Spinco or its Subsidiaries under this
Agreement, any other Ancillary Agreement or any other agreement between the
parties, (ii) the disclosure and assignment to Spinco or its Subsidiaries of
Proprietary Developments (as defined in an applicable Company Employee
Agreement) authored, conceived or reduced to practice by the former employee of
Company and its Subsidiaries after the Separation Date although based upon
intellectual property retained by the Company (whether patented or not);
provided, however, that in no event shall such disclosure and assignment be
regarded as assigning the underlying intellectual property to Spinco, (iii) the
rendering of any services, directly or indirectly, to Spinco or its Subsidiaries
to the extent such services are consistent with the assignment or license of
rights granted to Spinco or its Subsidiaries and the restrictions imposed on
Spinco or its Subsidiaries under this Agreement, any other Ancillary Agreement
or any other agreement between the parties and (iv) solicitation of the
employees of one party by the other party prior to the Redemption Date. Further,
Company and its Subsidiaries retain any rights they have under statute or common
law with respect to actions by their former employees to the extent such actions
are inconsistent with the rights granted to Spinco and its Subsidiaries and
restrictions imposed on them under this Agreement, any other Ancillary Agreement
or any other agreement between the parties.
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(b) Assignment, Cooperation for Compliance and Enforcement.
(i) Company and its Subsidiaries retain all rights
under the Company Employee Agreements relating to all former employees of the
Company or its Subsidiaries that Company needs to protect the rights and
interests of Company, but hereby transfers and assigns to Spinco and its
applicable Subsidiaries that will employ such employees after the Separation
Date its rights under the Company Employee Agreements of all former employees of
the Company and its Subsidiaries to the extent required to permit Spinco and its
Subsidiaries to enjoin their employees, restrain their employees, recover
damages from their employees or obtain specific performance of the Company
Employee Agreements or obtain other remedies against any employee who breaches
his/her Company Employee Agreement, and to the extent necessary to permit Spinco
and its Subsidiaries to protect the rights and interests of the businesses being
transferred to Spinco and its Subsidiaries on the Redemption Date.
(ii) Company and Spinco agree, at their own respective
cost and expense, to use their reasonable efforts to cooperate as follows: (A)
Spinco shall advise Company of: (1) any violation(s) of the Company Employee
Agreement by former Company employees which benefit third parties, and (2) any
violation(s) of the Company Employee Agreement which affect Company's rights and
which benefit third parties; and (B) Company shall advise Spinco of any
violations of the Company Employee Agreement by current or former Company
employees which affect Spinco's rights; provided, however, that the foregoing
obligations shall only apply to violations which are brought to the attention of
an attorney within the legal department of the party obligated to provide notice
thereof.
(iii) Company and Spinco each may separately enforce
the Company Employee Agreements of former Company employees to the extent
necessary to reasonably protect their respective interests, provided, however,
that (i) Spinco shall not commence any litigation relating thereto without first
consulting with Company's Director of Intellectual Property or his/her designee
and (ii) Company shall not commence any litigation relating thereto against any
former Company employee who is at the time a Spinco employee without first
consulting with Spinco's Director of Intellectual Property or his/her designee.
Any such action shall be conducted at the expense of the party bringing the
action.
(iv) Company and Spinco understand and acknowledge
that matters relating to the making, performance, enforcement, assignment and
termination of employee agreements are typically governed by the laws and
regulations of the national, federal, state or local governmental unit where an
employee resides, or where an employee's services are rendered, and that such
laws and regulations may supersede or limit the applicability or enforceability
of this Section 4.5. In such circumstances, Company and Spinco agree to take
action with respect to the employee agreements that best accomplishes the
parties' objectives as set forth in this Section 4.5 and that is consistent with
applicable law.
SECTION 4.6 COOPERATION IN OBTAINING NEW AGREEMENTS. Company understands
that, prior to the Separation Date, the HDD Business has derived benefits under
certain agreements between Company and third parties, which agreements are not
being assigned to Spinco in connection with the Separation. Upon the request of
Maxtor after the Merger, Company agrees to make introductions to appropriate
Maxtor personnel of Company's contacts at such third
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parties, and agrees to provide reasonable assistance to Maxtor, at Company's own
expense, so that Maxtor may obtain agreements from such third parties under
terms and conditions acceptable to Maxtor, including financial terms and
conditions, that apply to Company and its Subsidiaries. Such assistance may
include, but is not limited to, (i) requesting and encouraging such third
parties to enter into such agreements with Maxtor, (ii) attending meetings and
negotiating sessions with Maxtor and such third parties, and (iii) participating
in buying consortiums with Maxtor. Company also understands that there are
certain agreements between Company and third parties which the parties intend to
assign to Spinco in connection with the Separation but for which a precondition
to assignment may be the consent of the applicable third party. Upon the request
of Maxtor, Company agrees to assist Spinco and Maxtor in seeking and obtaining
the consent of such third parties to such assignment. The parties expect that
the activities contemplated by this Section 4.6 will be substantially completed
by the Redemption Date, but in no event will Company have any obligations
hereunder after the first anniversary of the Redemption Date.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY PARTY BE
LIABLE TO ANY OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE,
BUSINESS INTERRUPTION OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES EXCEPT IF THE PARTY HAS INTENTIONALLY OR KNOWINGLY FAILED TO COMPLY WITH
ITS OBLIGATIONS HEREUNDER AND PROVIDED, THAT THE FOREGOING LIMITATIONS SHALL NOT
LIMIT EACH PARTY'S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES
AS SET FORTH IN THE INDEMNIFICATION AGREEMENT.
SECTION 5.2 ENTIRE AGREEMENT. This Agreement, the Merger Agreement, the
other Ancillary Agreements and the Exhibits and Schedules referenced or attached
hereto and thereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all prior written and
oral and all contemporaneous oral agreements and understandings with respect to
the subject matter hereof.
SECTION 5.3 ACKNOWLEDGMENT. The parties acknowledge that rights and
obligations of Spinco shall be transferred to Maxtor by operation of law. From
and after the Effective Time (as defined in the Merger Agreement), Maxtor hereby
acknowledges and agrees that it shall be liable for all of Spinco's
responsibilities and obligations hereunder.
SECTION 5.4 GOVERNING LAW. This Agreement shall be governed and
construed and enforced in accordance with the laws of the State of Delaware as
to all matters regardless of the laws that might otherwise govern under the
principles of conflicts of laws applicable thereto.
SECTION 5.5 TERMINATION. This Agreement may be terminated and the
Redemption abandoned at any time prior to the Effective Time by mutual consent
of Company and Maxtor.
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In the event of termination pursuant to this Section 5.5, no party shall have
any liability of any kind to the other party.
SECTION 5.6 AMENDMENT. Subject to applicable Law, this Agreement may be
amended by the parties hereto at any time by execution of an instrument in
writing signed on behalf of each of the parties hereto.
SECTION 5.7 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or sent via facsimile (receipt confirmed) to the
parties at the following addresses or facsimile numbers (or at such other
address or facsimile numbers for a party as shall be specified by like notice):
(a) if to the Company, to:
QUANTUM CORPORATION
500 McCarthy Blvd.
Milpitas, CA 95035
Attention: Chief Executive Officer
Telephone No.: (408) 894-4000
Facsimile No.: (408) 894-3218
with copies to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market, Spear Street Tower
Suite 3300
San Francisco, California 94105
Attention: Larry W. Sonsini, Esq.
Michael J. Kennedy, Esq.
Telephone No. (415) 947-2012
Facsimile No.: (415) 947-2099
(b) if to Spinco, to:
INSULA CORPORATION
500 McCarthy Blvd.
Milpitas, CA 95035
Attention: Chief Executive Officer
Telephone No.: (408) 894-4000
Facsimile No.: (408) 894-3218
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with copies to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market, Spear Street Tower
Suite 3300
San Francisco, California 94105
Attention: Larry W. Sonsini, Esq.
Michael J. Kennedy, Esq.
Telephone No. (415) 947-2012
Facsimile No.: (415) 947-2099
(c) if to Maxtor, to:
MAXTOR CORPORATION
510 Cottonwood Drive
Milpitas, CA 95035
Attention: General Counsel
Telephone No.: (408) 432-1700
Facsimile No.: (408) 432-4158
with a copy to:
Gray Cary Ware & Freidenrich LLP
400 Hamilton Street
Palo Alto, California 94301
Attention: Diane Holt Frankle, Esq.
Henry Lesser, Esq.
Telephone No.: (650) 833-2000
Facsimile No.: (650) 327-3699
SECTION 5.8 INTERPRETATION. When a reference is made in this Agreement
to Exhibits, such reference shall be to an Exhibit to this Agreement unless
otherwise indicated. The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation." The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When reference is made herein to "the business
of" an entity, such reference shall be deemed to include the business of all
direct and indirect Subsidiaries of such entity.
SECTION 5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party or parties hereto, it being
understood that all parties hereto need not sign the same counterpart.
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SECTION 5.10 NO THIRD PARTY BENEFICIARIES. Except as provided in Section
5.3, this Agreement is not intended to confer upon any person other than the
parties to this Agreement any rights or remedies under this Agreement.
SECTION 5.11 SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability or the other provisions of this
Agreement. If any provision of this Agreement, or the application of that
provision to any person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted for that provision in
order to carry out, so far as may be valid and enforceable, the intent and
purpose of the invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of the provision to other persons or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of the
provision, or the application of that provision, in any other jurisdiction.
SECTION 5.12 OTHER REMEDIES; SPECIFIC PERFORMANCE. Except as otherwise
provided herein, any and all remedies herein expressly conferred upon a party
hereto shall be deemed cumulative with and not exclusive of any other remedy
conferred hereby, or by Law or equity upon such party, and the exercise by a
party hereto of any one remedy will not preclude the exercise of any other
remedy. The parties hereto agree that irreparable damage would occur in the
event that any of the terms of this Agreement were not performed in accordance
with its specific terms or were otherwise breached. It is accordingly agreed
that the parties hereto shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
SECTION 5.13 ASSIGNMENT. Except as provided in Section 5.3, no party may
assign either this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the of the parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
ARTICLE VI
DEFINITIONS
SECTION 6.1 ANCILLARY AGREEMENTS. "ANCILLARY AGREEMENTS" has the meaning
set forth in Section 2. 1 hereof.
SECTION 6.2 ASSIGNMENT AGREEMENT. "ASSIGNMENT AGREEMENT" has the meaning
set forth in Section 2.1(a) hereof.
SECTION 6.3 CODE. "CODE" has the meaning set forth in the Recitals.
SECTION 6.4 EMPLOYEE AGREEMENT. "EMPLOYEE AGREEMENT" has the meaning set
forth in Section 4.5 hereof.
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<PAGE> 15
SECTION 6.5 EXCHANGE AGENT. "EXCHANGE AGENT" has the meaning set forth
in Section 3.1(a) hereof.
SECTION 6.6 GOVERNMENTAL AUTHORITY. "GOVERNMENTAL AUTHORITY" shall mean
any federal, state, local, foreign or international court, government,
department, commission, board, bureau, agency, official or other regulatory,
administrative or governmental authority.
SECTION 6.7 HDD BUSINESS. "HDD BUSINESS" has the meaning set forth in
the Assignment Agreement.
SECTION 6.8 HDD COMMON STOCK. "HDD COMMON STOCK" means the shares of
common stock of the Company's Hard Disk Drive Group.
SECTION 6.9 INFORMATION. "INFORMATION" means information, whether or not
patentable or copyrightable, in written, oral, electronic or other tangible or
intangible forms, stored in any medium, including studies, reports, records,
books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
SECTION 6.10 MERGER AGREEMENT. "MERGER AGREEMENT" means that certain
Amended and Restated Agreement and Plan of Merger and Reorganization by and
among Company, Spinco, Maxtor and a wholly owned subsidiary of Maxtor dated as
of October 3, 2000.
SECTION 6.11 PERSON. "PERSON" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization and a governmental
entity or any department, agency or political subdivision thereof.
SECTION 6.12 REDEMPTION. "REDEMPTION" has the meaning set forth in
the Recitals.
SECTION 6.13 SEPARATION. "SEPARATION" has the meaning set forth in the
Recitals.
SECTION 6.14 SEPARATION DATE. "SEPARATION DATE" has the meaning set
forth in Section 1.1 hereof.
SECTION 6.15 SPINCO COMMON STOCK. "SPINCO COMMON STOCK" means the shares
of common stock of Spinco.
SECTION 6.16 SUBSIDIARY. "SUBSIDIARY" means with respect to any
specified Person, any corporation, any limited liability company, any
partnership or other legal entity of which such Person or its Subsidiaries owns,
directly or indirectly, more than 50% of the stock or other equity interest
entitled to vote on the election of the members of the board of directors or
similar governing body.
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SECTION 6.17 WSGR. "WSGR" means Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
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<PAGE> 17
WHEREFORE, the parties have signed this Separation and Redemption
Agreement effective as of the date first set forth above.
QUANTUM CORPORATION
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INSULA CORPORATION
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAXTOR CORPORATION
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Separation and Redemption Agreement]
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