Exhibit 2.9
EXECUTION COPY
AMENDMENT NO. 1
Dated as of October 31, 2002
to
STOCK PURCHASE AGREEMENT
by and among
OAK INVESTMENT PARTNERS X, LIMITED PARTNERSHIP,
OAK X AFFILIATES FUND, L.P.,
OAK INVESTMENT PARTNERS IX, LIMITED PARTNERSHIP,
OAK IX AFFILIATES FUND, L.P.,
OAK IX AFFILIATES FUND-A, L.P.,
SEAGATE TECHNOLOGY HOLDINGS,
SEAGATE TECHNOLOGY SAN HOLDINGS,
and
XIOTECH CORPORATION
Dated as of October 28, 2002
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of October 31, 2002 by and among Oak Investment Partners X,
Limited Partnership, a Delaware limited partnership ("Oak X"), Oak X Affiliates
Fund, L.P., a Delaware limited partnership ("Oak X Affiliates"), Oak Investment
Partners IX, Limited Partnership, a Delaware limited partnership ("Oak IX"), Oak
IX Affiliates Fund, L.P., a Delaware limited partnership ("Oak IX Affiliates"),
Oak IX Affiliates Fund-A, L.P., a Delaware limited partnership ("Oak IX
Affiliates-A") (each of Oak X, Oak X Affiliates, Oak IX, Oak IX Affiliates and
Oak IX Affiliates-A a "Buyer" and collectively the "Buyers"), Seagate Technology
Holdings, a Cayman Islands limited liability company ("Seagate"), Seagate
Technology SAN Holdings, a Cayman Islands limited liability company ("Seller"),
New SAC, a Cayman Islands limited liability company ("New SAC"), and XIOtech
Corporation, a Minnesota corporation (the "Company"), and amends that certain
Stock Purchase Agreement, dated as of October 28, 2002, by and among the Buyers,
Seagate, Seller and the Company (the "Agreement"). Capitalized terms used herein
and not otherwise defined herein have the meanings ascribed to such terms in the
Agreement.
WITNESSETH:
WHEREAS, Seller desires to transfer the Shares to New SAC, and New SAC
desires to acquire the Shares from Seller;
WHEREAS, Section 5.21 of the Agreement provides that Seller shall be
permitted to transfer the Shares to New SAC or any Affiliate of Seller, upon
which the parties shall amend the Agreement to add New SAC or such Affiliate and
delete Seller as parties thereto such that, thereafter, the term "Seller" shall
refer in all instances to New SAC or such Affiliate rather than Seller;
WHEREAS, Section 5.21 of the Agreement further provides that additional
appropriate amendments to the Agreement and the Schedules and Exhibits attached
thereto shall be made to reflect the addition of New SAC or such Affiliate and
deletion of Seller as parties thereto, including, without limitation,
appropriate amendments to the Schedule of Exceptions and the Seller Legal
Opinion;
WHEREAS, the Board of Directors of Seller has authorized Seller to transfer
the Shares to New SAC and to execute, deliver and perform this Amendment; and
WHEREAS, the Board of Directors of New SAC has authorized New SAC to
acquire the Shares from Seller and to execute, deliver and perform this
Amendment and the Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, covenants, representations and warranties contained herein, the
parties, intending to be legally bound, agree as follows:
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ARTICLE I
AMENDMENT OF AGREEMENT
1.1 Amendment of Agreement.
Effective as of the date of this Amendment, the parties to this Amendment
hereby amend the Agreement and the Schedules and Exhibits thereto as follows:
(a) Addition and Deletion of Parties. Seller is hereby deleted as a
party to the Agreement, and New SAC is hereby added as a party to the Agreement,
such that, henceforth, all references in the Agreement to "Seller" shall refer
to New SAC. The parties acknowledge and agree that (i) New SAC hereby assumes
all rights and obligations of Seller under the Agreement and (ii) Seller shall
have no further rights or obligations under the Agreement.
(b) Schedule of Exceptions. The Schedule of Exceptions is hereby
amended such that, henceforth, all references in the Schedule of Exceptions to
"Seller" shall refer to New SAC.
(c) Seller Legal Opinion. Exhibit 6.1(h) to the Agreement is hereby
amended and restated to read as set forth on Exhibit B hereto.
(d) Stockholders Agreement. Exhibit 6.1(l) to the Agreement is hereby
amended to delete Seller and to add New SAC as parties thereto.
(e) Indemnification Side Letter. Exhibit 6.1(s) to the Agreement is
hereby amended to delete Seller and to add New SAC as parties thereto.
1.2 Notice of Developments.
The parties hereto acknowledge and agree that this Amendment shall satisfy
fully Seller's and Seagate's obligations pursuant to Section 5.10 of the
Agreement with respect to the matters set forth herein. The Buyers hereby
consent pursuant to Section 5.1 to all actions required to be taken by Seller,
Seagate and New SAC to effect the intent of this Amendment.
ARTICLE II
MISCELLANEOUS
2.1 Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware in all respects without giving
effect to the principles of conflicts of law thereof.
2.2 Additional Acts and Documents. Each party hereto agrees to do such
things, take all such actions, and make, execute and deliver such other
documents and instruments, as shall be reasonably requested to carry out the
provisions, intent and purpose of this Amendment, in each case, at the sole
expense of the party or parties so requested.
2.3 Counterparts; Facsimile Signatures. This Amendment may be executed in
any number of counterparts, each of which so executed shall be deemed an
original and all of which,
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when taken together, shall constitute one and the same instrument. This
Amendment may be executed by facsimile signature.
2.4 Headings. The headings of the Articles, Sections and paragraphs of this
Amendment are inserted for convenience only and shall not be deemed to
constitute part of this Amendment or to affect the construction hereof.
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IN WITNESS WHEREOF, the undersigned have hereunto executed this Amendment
No. 1 to Stock Purchase Agreement as of the day and year first above written.
BUYERS
OAK INVESTMENT PARTNERS X, LIMITED PARTNERSHIP
By: /s/ Edward F. Glassmeyer
-------------------------------------------------
Edward F. Glassmeyer
Managing Member of Oak Associates X, LLC
The General Partner of Oak Investment Partners X,
Limited Partnership
OAK X AFFILIATES FUND, LIMITED PARTNERSHIP
By: /s/ Edward F. Glassmeyer
-------------------------------------------------
Edward F. Glassmeyer
Managing Member of Oak Associates X, LLC
The General Partner of Oak X Affiliates Fund,
Limited Partnership
OAK INVESTMENT PARTNERS IX, LIMITED PARTNERSHIP
By: /s/ Edward F. Glassmeyer
-------------------------------------------------
Edward F. Glassmeyer
Managing Member of Oak Associates IX, LLC
The General Partner of Oak Investment Partners IX
Limited Partnership
OAK IX AFFILIATES FUND, LIMITED PARTNERSHIP
By: /s/ Edward F. Glassmeyer
-------------------------------------------------
Edward F. Glassmeyer
Managing Member of Oak Associates IX, LLC
The General Partner of Oak IX Affiliates Fund,
Limited Partnership
OAK IX AFFILIATES FUND-A, LIMITED PARTNERSHIP
By: /s/ Edward F. Glassmeyer
-------------------------------------------------
Edward F. Glassmeyer
Managing Member of Oak Associates IX, LLC
The General Partner of Oak IX Affiliates Fund-A,
Limited Partnership
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COMPANY
XIOTECH CORPORATION
By: /s/ Donald L. Waite
-----------------------------------------------
Name: Donald L. Waite
Title: Executive Vice President
SELLER
SEAGATE TECHNOLOGY SAN HOLDINGS
By: /s/ Donald L. Waite
-------------------------------------------------
Name: Donald L. Waite
Title: Executive Vice President
SEAGATE
SEAGATE TECHNOLOGY HOLDINGS
By: /s/ Donald L. Waite
-------------------------------------------------
Name: Donald L. Waite
Title: Executive Vice President and CAO
NEW SAC
NEW SAC
By: /s/ Stephen J. Luczo
-------------------------------------------------
Name: Stephen J. Luczo
Title: Chief Executive Officer
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