EXHIBIT 4.1
VOTING AGREEMENT
This VOTING AGREEMENT ("Agreement") is made as of this 26th day of December
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1996, among SEAGATE SOFTWARE, INC., a Delaware corporation ("Seagate Software"),
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SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP, INC., a British Columbia
corporation ("Seagate Canada") and SEAGATE TECHNOLOGY INTERNATIONAL HOLDINGS, a
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Cayman Islands corporation ("Seagate Cayman Holdings"), with reference to the
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following:
RECITALS
A. Pursuant to an Exchange Agreement dated as of December __, 1996,
Seagate Canada and Seagate Cayman Holdings agreed to reorganize the capital of
Seagate Canada as set forth therein (the "Exchange"), and in connection
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therewith, Seagate Cayman Holdings and Seagate Canada required Seagate Software,
Seagate Canada and Seagate Cayman Holdings to enter into a Voting Agreement on
the terms and conditions set forth herein.
B. Following the consummation of the transactions contemplated by the
Exchange, Seagate Canada issued to Seagate Software 10,000 Common Shares of
Seagate Canada (the "Seagate Canada Common Shares"), constituting all of the
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issued and outstanding Seagate Canada Common Shares, and Seagate Canada issued
to Seagate Cayman Holdings 7,200,000 Class B Exchangeable Shares of Seagate
Canada (the "Seagate Canada Exchangeable Shares"), constituting all of the
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issued and outstanding Seagate Canada Exchangeable Shares.
C. In connection with the Exchange, Seagate Software has agreed to
provide voting rights in Seagate Software to the holder of the Seagate Canada
Exchangeable Shares, such voting rights per Seagate Canada Exchangeable Share to
be equivalent to the voting rights per each issued and outstanding share of the
Seagate Software Series A Shares (as hereinafter defined), assuming each such
Seagate Software Series A Share had been converted by its terms into Common
Stock of Seagate Software (the "Seagate Software Common Stock").
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D. The parties hereto desire to make appropriate provision and to
establish a procedure whereby voting rights in Seagate Software shall be
exercisable from time to time by Seagate Cayman Holdings, as holder of the
Seagate Canada Exchangeable Shares, by and through Seagate Cayman Holdings'
legal title to one share of Special Voting Preferred Stock of Seagate Software,
to which voting rights in Seagate Software attach for the benefit of
International Holdings.
NOW THEREFORE, in consideration of the respective covenants and agreements
provided in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions.
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"Business Day" means a day other than a Saturday, a Sunday or a
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statutory holiday in San Francisco, California and Vancouver, British Columbia.
"Seagate Software Consent" has the meaning ascribed thereto in
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section 3.2.
"Seagate Software Meeting" has the meaning ascribed thereto in
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section 3.2.
"Seagate Software Series A Shares" means the Series A Preferred Stock
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of Seagate Software, as such shares may be constituted from time to time as set
forth in the Certificate of Incorporation of Seagate Software and as the same
may be affected by any subdivision, consolidation, reclassification or other
change or by any reorganization, amalgamation, merger, sale of assets or by any
distribution in respect of such Seagate Software Series A Shares, including any
automatic or voluntary conversion of such Seagate Software Series A Shares into
Seagate Software Common Stock or other capital stock of Seagate Software.
"Seagate Software Votes" mean a number of votes equal to the number of
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votes in respect of Seagate Software to which Seagate Cayman Holdings would be
entitled if (i) the Seagate Canada Exchangeable Shares then held by Seagate
Cayman Holdings were exchanged for Seagate Software Series A Shares in
accordance with the Special Rights and Provisions attached to the Seagate Canada
Exchangeable Shares set forth in the Articles of Seagate Canada, and (ii) if
such Seagate Software Series A Shares were, in turn, converted by Seagate Cayman
Holdings into shares of Seagate Software Common Stock in accordance with the
provisions of the Certificate of Incorporation of Seagate Software, as the same
may be amended from time to time.
"Support Agreement" means that certain support agreement dated as of
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even date herewith between Seagate Canada and Seagate Software.
"Voting Rights" means the voting rights attached to the Voting Share.
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"Voting Share" means the one share of Special Voting Preferred Stock
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of Seagate Software, U.S. $.001 par value, issued by Seagate Software to Seagate
Cayman Holdings, which entitles Seagate Cayman Holdings to a number of votes at
meetings of stockholders of Seagate Software equal to the number of Seagate
Software Votes.
1.2 Interpretation Not Affected by Headings, etc. The division of this
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Agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
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1.3 Number, Gender, etc. Words importing the singular number only shall
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include the plural and vice versa. Words importing the use of any gender shall
include all genders.
1.4 Date for any Action. If any date on which any action is required to
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be taken under this Agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
ARTICLE 2
VOTING SHARE
2.1 Issuance of the Voting Share. In consideration of Seagate Cayman
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Holdings' and Seagate Canada's agreement to enter into the Exchange, Seagate
Software hereby issues the Voting Share to Seagate Cayman Holdings, in
accordance with the provisions of this Agreement.
ARTICLE 3
EXERCISE OF VOTING SHARE
3.1 Voting Share. Seagate Cayman Holdings shall be entitled to all of the
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Voting Rights, including the right to consent to or to vote in person or by
proxy the Voting Share, on any matter, question or proposition whatsoever that
may properly come before the stockholders of Seagate Software at a Seagate
Software Meeting or in connection with a Seagate Software Consent.
3.2 Number of Votes. With respect to all meetings of stockholders of
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Seagate Software at which its stockholders are entitled to vote (a "Seagate
Software Meeting") and with respect to all written consents sought by Seagate
Software from its stockholders (a "Seagate Software Consent"), Seagate Cayman
Holdings shall be entitled to cast and exercise a number of votes equal to the
Seagate Software Votes in respect of each matter, question or proposition to be
voted on at such Seagate Software Meeting or to be consented to in connection
with such Seagate Software Consent. For the purpose of determining the Seagate
Software Votes to which Seagate Cayman Holdings is entitled in respect of any
such Seagate Software Meeting or Seagate Software Consent, the number of Seagate
Canada Exchangeable Shares owned of record by Seagate Cayman Holdings, and the
number of shares of Seagate Software Common Stock into which such Seagate Canada
Exchangeable Shares are convertible, shall be determined at the close of
business on the record date established by Seagate Software or by applicable law
for purposes of determining stockholders entitled to vote at such Seagate
Software Meeting or to give written consent in connection with such Seagate
Software Consent. Each of Seagate Canada and Seagate Cayman Holdings agrees to
provide immediate notice to Seagate Software of any change in the number of
Seagate Canada Exchangeable Shares held by Seagate Cayman Holdings, and in the
event of any dispute between any such notice provided by Seagate Canada and any
such notice provided by Seagate Cayman Holdings, the notice provided by Seagate
Canada shall control.
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3.3 Copies of Stockholder Information. Seagate Software will deliver to
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Seagate Cayman Holdings copies of all proxy materials, information statements,
reports (including without limitation all interim and annual financial
statements) and other written communications that are to be distributed from
time to time to holders of Seagate Software Common Stock at the same time as
such materials are first sent to holders of Seagate Software Common Stock.
3.4 Other Materials. Immediately after receipt by Seagate Software or any
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stockholder of Seagate Software of any material sent or given to the holders of
Seagate Software Common Stock by or on behalf of a third party, including
without limitation dissident proxy and information circulars (and related
information and material) and tender and exchange offer circulars (and related
information and material), Seagate Software shall obtain and deliver the same to
Seagate Cayman Holdings (unless the same has been provided directly to Seagate
Cayman Holdings by such third party).
3.5 Termination of Voting Rights. All of the rights of Seagate Cayman
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Holdings with respect to the Seagate Software Votes exercisable in respect of
any Seagate Canada Exchangeable Shares held by Seagate Cayman Holdings shall
automatically be deemed to be surrendered by Seagate Cayman Holdings to Seagate
Software, and the Seagate Software Votes and the Voting Rights represented
thereby shall automatically cease, immediately upon the delivery by Seagate
Cayman Holdings to Seagate Canada of the certificates representing such Seagate
Canada Exchangeable Shares following the exchange or retraction of such Seagate
Canada Exchangeable Shares, or otherwise, in accordance with the Special Rights
and Provisions attached to such Seagate Canada Exchangeable Shares set forth in
the Articles of Seagate Canada. The parties hereto acknowledge that the Seagate
Canada Exchangeable Shares may be exchanged or retracted in whole or in part,
and that the number of Seagate Software Votes exercisable in respect of the
Seagate Canada Exchangeable Shares shall be reduced accordingly.
ARTICLE 4
RESTRICTIONS ON ISSUANCE; CHANGES IN CAPITAL
4.1 Issue of Additional Shares. During the term of this Agreement,
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Seagate Software will not create, issue or allot (or make any agreement to date)
any shares of Seagate Software Special Voting Preferred Stock in addition to the
Voting Share. Nothing herein shall preclude Seagate Software from issuing any
other class or series of capital stock.
4.2 Changes in Capital. At all times after the occurrence of any event
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effected pursuant to section 2.7 or section 2.8 of the Support Agreement, as a
result of which either shares of the Seagate Software Series A Shares or the
Seagate Canada Exchangeable Shares, or either of them, are in any way changed,
this Agreement shall forthwith be amended and modified as necessary in order
that it shall apply with full force and effect, mutatis mutandis, to all new
securities into which the Seagate Software Series A Shares or the Seagate Canada
Exchangeable Shares, as applicable, are so changed
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and the parties hereto shall execute and deliver any necessary supplemental
agreements giving effect to and evidencing such necessary amendments and
modifications.
ARTICLE 5
TERM; TERMINATION
5.1 Term. This Agreement shall be effective upon the issuance of the
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Seagate Canada Exchangeable Shares by Seagate Canada to Seagate Cayman Holdings
under the Exchange and shall continue until the earlier to occur of the
following events:
(a) no outstanding Seagate Canada Exchangeable Shares are held by
Seagate Cayman Holdings; and
(b) each of Seagate Canada, Seagate Software and Seagate Cayman
Holdings elects in writing to terminate this Agreement.
ARTICLE 6
GENERAL
6.1 Amendments, Modifications, etc. This Agreement may not be amended or
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modified except by an agreement in writing executed by Seagate Canada, Seagate
Software and Seagate Cayman Holdings.
6.2 Severability. If any provision of this Agreement is held to be
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invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this Agreement shall not in any way be affected or impaired
thereby and the agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions.
6.3 No Assignment. The rights and obligations of each party hereunder may
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not be assigned, and any attempt to assign any of such rights or obligations
shall be null and void.
6.4 Notices to Parties. All notices and other communications between the
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parties hereunder shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified in like
notice):
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(a) if to Seagate Software at:
Seagate Software, Inc.
920 Disc Drive
Scotts Valley, California 95066
Attn: President
(b) if to Seagate Canada at:
Seagate Software Information Management Group, Inc.
1095 West Pender Street, Suite 400
Vancouver, British Columbia, Canada
Attn: President
(c) if to Seagate Cayman Holdings at:
Seagate Technology International Holdings
920 Disc Drive
Scotts Valley, California 95066
Attn: President
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of receipt thereof unless
such day is not a Business Day in which case it shall be deemed to have been
given and received upon the immediately following Business Day.
6.5 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
6.6 Jurisdiction. This Agreement shall be construed and enforced in
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accordance with the laws of the State of Delaware. Each of the parties hereto
agrees that any action or proceeding arising out of or relating to this
Agreement may be instituted in the courts of Delaware, waives any objection
which it may have now or hereafter to the venue of any such action or
proceeding, irrevocably submits to the jurisdiction of the said courts in any
such action or proceeding, agrees to be bound by any judgment of the said courts
and not to seek, and hereby waives, any review of the merits of any such
judgment by the courts of any other jurisdiction. In addition, Seagate Canada
hereby appoints Seagate Software at its registered office in the State of
Delaware as its attorney for service of process.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SEAGATE SOFTWARE, INC.
By: /s/ Alan F. Shugart
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Name: Alan F. Shugart
Title: President
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP, INC.
By: /s/ Greg Kerfoot
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Name: Greg Kerfoot
Title: President
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP, INC.
By: /s/ Donald L. Waite
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Name: Donald L. Waite
Title: Vice President,
Secretary and Treasurer
SEAGATE TECHNOLOGY INTERNATIONAL
HOLDINGS
By: /s/ Stephen J. Luczo
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Name: Stephen J. Luczo
Title: President
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