Seagate 2010 Annual Report Download - page 188

had or would reasonable be expected to have a Guarantor Material Adverse Effect (whether or not covered by insurance).
4.9
Legal Proceedings .
(a)
There is no pending Legal Proceeding, and to the Knowledge of the Guarantor, there is no threatened Legal
Proceeding:
(i) that involves the Guarantor or the Purchaser which if decided adversely would have a Guarantor Material
Adverse Effect; or
(ii)
that involves the Guarantor or the Purchaser which challenges, or that may have the effect of preventing,
materially delaying, making illegal or otherwise interfering with, the transactions contemplated by this Agreement.
(b) Except as would not have a Guarantor Material Adverse Effect, there is no decree, order, judgment, injunction,
temporary restraining order or other order in any Legal Proceeding to which the Purchaser or the Guarantor is subject.
4.10 Availability of Funds . The Purchaser has lawfully available, and will have lawfully available on the Closing Date, sufficient
funds without any external financing to enable the Purchaser to consummate the transactions contemplated by this Agreement and to pay all of
the Cash Consideration and the Purchaser’s and the Guarantor’s fees and expenses in connection with this Agreement and the other Transaction
Documents and the transactions contemplated hereby and thereby. No action or proceeding has been commenced by or against the Purchaser or
the Guarantor under any bankruptcy Law of any relevant jurisdiction for the relief of debtors or for the enforcement of the rights of creditors.
4.11 Finder’s Fee . Other than Morgan Stanley & Co. Incorporated, no broker, finder or investment banker is entitled to any
brokerage, finder’s or other fee or commission payable by the Guarantor or the Purchaser in connection with the transactions contemplated
hereby.
SECTION 5
CERTAIN COVENANTS AND AGREEMENTS
5.1 Access and Investigation . During the period from the Agreement Date through the Closing Date (the “ Pre-Closing Period
”), the Seller shall provide the Purchaser and the Purchaser’s Representatives with reasonable access to the Seller’s Representatives, personnel,
properties and assets and to all existing books, records, work papers, financial data (other than pricing information) and other documents and
information relating to the Business as the Purchaser may reasonably request, subject to any restrictions under applicable Law.
5.2
Operation of the Seller’s Business . During the Pre-Closing Period, except as otherwise consented to by the Purchaser, the
Seller shall, and shall cause the Seller Subsidiaries to:
(a)
conduct the Business (i) in the ordinary course and in accordance with past practices and (ii) in compliance with (x)
all Laws and Governmental Authorizations
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applicable to the Business and (y) the requirements of all Assumed Contracts to which the Seller or the Seller Subsidiaries are a party;
and
(b)
use commercially reasonable efforts to ensure that it preserves the Business intact and maintains its relations and
goodwill with all suppliers, customers, licensors and licensees providing services or products to the Business.
For the avoidance of doubt, any change in the Business or in the conduct or operation of the Business as a result of any loss of or any
other change in the relationships with employees (including any strikes and other labor dispute), suppliers or customers (including customer
orders or contracts) of the Seller or the Seller Subsidiaries or any change to the financial performance or position or results of operation of the
Seller or the Seller Subsidiaries resulting from the announcement or pendency of the transactions contemplated by this Agreement or any other
industry-related factors, in and of itself without otherwise breaching this Section 5.2, shall not be deemed to be a breach of this Section 5.2.
5.3
Preparation of Financial Statements . Prior to the Closing Date, the Seller shall cause to be prepared and delivered to the
Guarantor (a) such audited financial statements (the “ Business Financial Statements ”) of the Business that the Guarantor determines in good
faith (after consultation with its accounting and legal advisors) to be required by, and would enable the Guarantor to comply with, the public
reporting and other rules and regulations of the SEC and the NASDAQ Global Select Market applicable to the Guarantor in the context or as a
result of the transactions contemplated by the Transaction Documents, including those public reporting and other rules and regulations that
require, permit or contemplate the public reporting of audited financial statements and pro forma information following the consummation of the
transactions contemplated by the Transaction Documents and (b) such audited financial statements for the Business for the fiscal year ended
December 31, 2010, (the “ 2010 Financial Statements of the Business ”) to be prepared by the Seller in accordance with Korean IFRS and its
accounting policies and practices under its sole control, judgment and discretion. For the avoidance of doubt, the 2010 Financial Statements of
the Business shall not be prepared for the Guarantor to comply with its reporting obligations and shall not be required to be prepared with any
consultation with, determination by, or any other input from the Guarantor. In connection with the preparation and delivery of the Business
Financial Statements, the Guarantor shall, and shall cause its Representatives to, fully cooperate with the Seller and its Representatives in a