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EXHIBIT 10.3
OPTION TO PURCHASE SHARES OF STOCK
THIS OPTION TO PURCHASE SHARES OF STOCK (the "Agreement") is made as of
the 24th day of May, 2001 (the "Effective Date"), by and between Hynix
Semiconductor America Inc., a California corporation (the "Holder"), and Maxtor
Corporation, a Delaware corporation, or a subsidiary of, and designated by,
Maxtor Corporation (collectively with Maxtor Corporation, "Maxtor").
RECITALS
A. Pursuant to the Holder's rights under Section 3.2 of that certain
Stockholder Agreement dated June 25, 1998, as amended (the "Stockholder
Agreement"), by and between the Holder and Maxtor, the Holder has notified
Maxtor of the Holder's desire to sell 28,329,850 shares (the "Shares") of common
stock (the "Common Stock") of Maxtor.
B. To facilitate the Holder's sale of the Shares, Maxtor has agreed to
file a registration statement on Form S-3 (the "Registration Statement") with,
and to use its reasonable commercial efforts to have such Registration Statement
declared effective by, the Securities and Exchange Commission (the "SEC"),
relating to a public offering of some or all of the Shares (the "Offering").
C. Maxtor has indicated a desire to purchase, at its option and
simultaneously with the closing of the Offering, up to $50.0 million of the
Shares to be sold by the Holder, at a price per share equal to the price per
share in the Offering.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Option to Purchase Shares.
a. The Option. Maxtor may elect, at its option (the "Option"), to
purchase up to $50.0 million of the Shares (the "Purchased Shares") from the
Holder at a per share price equal to the Per Share Public Offering Price (the
"Purchase Price") set forth on the front cover of the final prospectus relating
to the Offering (the "Final Prospectus"), and filed by Maxtor with the SEC
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the
"Securities Act").
b. Notice of Election. In the event Maxtor elects to exercise its
Option, Maxtor shall notify the Holder of such election prior to the final
pricing call between the Holder and the managing underwriters of the Offering on
the day the Registration Statement is declared effective by the SEC.
c. Payment for the Purchased Shares. In the event Maxtor elects to
exercise its Option, Maxtor shall pay, at the Closing (as such term is defined
in Section 2.1 below), the aggregate Purchase Price to the Holder by delivery of
a check or wire transfer to an account designated in writing by the Holder to
Maxtor.
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2. Closing; Delivery.
a. The Closing. In the event Maxtor exercises its Option, the
closing of the purchase and sale of the Purchased Shares hereunder (the
"Closing") shall occur simultaneously with the closing of the Offering (the
"Offering Closing") as provided for in that certain underwriting agreement to be
entered into by and among Maxtor, the Holder and Xxxxxxx Xxxxx Xxxxxx Inc.,
Bear, Xxxxxxx & Co. Inc. and Xxxxxxx & Company, Inc., as representatives of the
underwriters. In the event the Offering Closing does not occur for any reason,
Maxtor shall not be obligated in any way to purchase any of the Purchased Shares
from the Holder.
b. Delivery. At the Closing, the Holder shall deliver to Maxtor
the following: (i) a stock assignment, in the form attached hereto as Exhibit A
(the "Assignment") transferring the Purchased Shares which Maxtor has elected to
purchase, and (ii) the certificate(s) representing the Purchased Shares to be
purchased by Maxtor from the Holder. At the Closing, Maxtor shall deliver the
aggregate Purchase Price to the Holder.
3. Representations and Warranties of the Holder. In connection with
this Agreement and the transactions contemplated hereby, the Holder hereby
represents and warrants that as of the date of this Agreement, the following are
true and correct and as of the Closing, the following shall be true and correct
as if made on such date:
a. Organization and Standing. The Holder is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
California, and is in good standing under such laws. The Holder has the
requisite corporate power to own and operate its properties and assets and to
carry on its business as presently conducted and as proposed to be conducted.
b. Corporate Power. The Holder has all requisite corporate power
to (i) enter into this Agreement, (ii) sell the Purchased Shares hereunder and
(iii) carry out and perform its other obligations under the terms of this
Agreement. This Agreement has been duly authorized, executed and delivered by
the Holder and constitutes a valid and binding agreement of the Holder,
enforceable against the Holder in accordance with the terms hereof (except as
such enforceability may be limited by applicable bankruptcy, insolvency, or
other laws affecting creditors' rights generally or by general principles of
equity and except as rights to indemnity or contribution may be limited by
federal or state securities laws and the public policy underlying such laws).
c. Valid Title to Purchased Shares. The Holder represents that it
has good and valid title to the Purchased Shares, free and clear of all liens,
charges, encumbrances, equities, claims, restrictions and other defects of
title; and upon delivery of the Purchased Shares and payment therefor pursuant
hereto, good and valid title to the Purchased Shares, free and clear of all
liens, charges, encumbrances, equities, claims, restrictions and other defects
of title, will be delivered to Maxtor.
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4. Representations and Warranties of Maxtor. In connection with this
Agreement and the transactions contemplated hereby, Maxtor hereby represents and
warrants that as of the date of this Agreement, the following are true and
correct and as of the Closing, the following shall be true and correct as if
made on such date:
a. Organization and Standing. Maxtor is a corporation duly
organized and validly existing under, and by virtue of, the laws of, the State
of Delaware and is in good standing under such laws. Maxtor has the requisite
corporate power to own and operate its properties and assets and to carry on its
business as presently conducted and as proposed to be conducted.
b. Corporate Power. Maxtor has all requisite corporate power to
(i) enter into this Agreement, (ii) purchase the Purchased Shares hereunder and
(iii) carry out and perform its other obligations under the terms of this
Agreement. This Agreement has been duly authorized, executed and delivered by
Maxtor and constitutes a valid and binding agreement of Maxtor, enforceable
against Maxtor in accordance with the terms hereof (except as such
enforceability may be limited by applicable bankruptcy, insolvency, or other
laws affecting creditors' rights generally or by general principles of equity
and except as rights to indemnity or contribution may be limited by federal or
state securities laws and the public policy underlying such laws).
c. No Conflict With Other Instruments or Proceedings. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement will not (i) result in the breach of
any of the terms or conditions of, or constitute a default under, Maxtor's
charter documents or any material contract that Maxtor has filed with the SEC
pursuant to Item 601 of Regulation S-K under the Securities Act; (ii) violate
any law, rule or regulation of any administrative agency or governmental body or
any order, writ, injunction or decree of any court, administrative agency or
governmental body; or (iii) give rise to any right of first refusal or similar
right to any third party with respect to any interest in Maxtor or in any of
Maxtor's assets.
5. Conditions to Closing.
a. Conditions to the Holder's Obligations. The Holder's obligation
to sell the Purchased Shares to Maxtor at the Closing is subject to the
fulfillment on or prior to the Closing of the following conditions, the waiver
of which shall not be effective against the Holder without the Holder's consent
thereto:
(i) Representations and Warranties Correct. The
representations and warranties of Maxtor in Section 4 hereof shall be true and
correct when made, and shall be true and correct on the Closing with the same
force and effect as if they had been made on and as of the Closing, subject to
the changes contemplated by this Agreement.
(ii) Qualifications. All authorizations, approvals or permits
of any governmental authority that are required in connection with the lawful
transfer of the Purchased Shares shall have been duly obtained and shall be
effective on and as of the Closing, or will be
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made or obtained in a timely manner so as to comply with the requirements of
such governmental authority.
(iii) Legal Investment. At the time of the Closing, the
purchase and sale of the Purchased Shares hereunder shall be legally permitted
by all laws and regulations to which Maxtor and the Holder are subject.
b. Conditions to Maxtor's Obligations. The obligation of Maxtor to
purchase the Purchased Shares from the Holder at the Closing is subject to the
fulfillment on or prior to the Closing of the following conditions, the waiver
of which shall not be effective against Maxtor without Maxtor's consent thereto:
(i) Representations and Warranties Correct. The
representations and warranties made by the Holder in Section 3 hereof shall be
true and correct when made, and shall be true and correct on the Closing with
the same force and effect as if they had been made on and as of the Closing,
subject to changes contemplated by this Agreement.
(ii) Qualifications. All authorizations, approvals or permits
of any governmental authority that are required in connection with the lawful
transfer of the Purchased Shares shall have been duly obtained and shall be
effective on and as of the Closing, or will be made or obtained in a timely
manner so as to comply with the requirements of such governmental authority.
(iii) No Conflict With Other Instruments or Proceedings. At
the time of the Closing and the consummation of the transactions contemplated by
this Agreement and all related agreements will not (i) result in the breach of
any of the terms or conditions of, or constitute a default under, the Holder's
charter documents or any contract, agreement, lease, commitment, indenture,
mortgage, pledge, note, bond, license or other instrument or obligation to which
the Holder is now a party or by which the Holder or any of the Holder's
properties or assets may be bound or affected; (ii) violate any law, rule or
regulation of any administrative agency or governmental body or any order, writ,
injunction or decree of any court, administrative agency or governmental body;
or (iii) give rise to any right of first refusal or similar right to any third
party with respect to any interest in the Holder or in any of the Holder's
assets.
(iv) Legal Investment. At the time of the Closing, the
purchase and sale of the Purchased Shares hereunder shall be legally permitted
by all laws and regulations to which Maxtor and the Holder are subject.
6. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
7. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to the other party hereto at the address
hereinafter shown below his signature or at such other address as such party may
designate by ten (10) days' advance written notice to the other party hereto.
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8. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of the Holder and Maxtor.
9. Entire Agreement; Amendments. This Agreement, together with the
Exhibits hereto, shall constitute the entire agreement of the parties with
respect to the subject matter hereof superseding all prior written or oral
agreements, and no amendment or addition hereto shall be deemed effective unless
agreed to in writing by the parties hereto.
10. Governing Law. This Agreement, together with the Exhibits hereto,
shall be construed under the laws of the State of California (as it applies to
agreements between California residents, entered into and to be performed
entirely within California).
11. Right to Specific Performance. The Holder agrees that Maxtor shall
be entitled to a decree of specific performance of the terms hereof or an
injunction restraining violation of this Agreement, said right to be in addition
to any other remedies available to Maxtor.
12. Separability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way and shall be construed in accordance with the
purposes and tenor and effect of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE HOLDER:
By:
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Xxx Xxxxxx, Chief Financial Officer
Address: 0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
MAXTOR:
By:
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Xxxxx X. Xxxxxxx
Address: 000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
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EXHIBIT A
ASSIGNMENT SEPARATE FROM STOCK CERTIFICATE
FOR VALUE RECEIVED, Hynix Semiconductor America Inc., hereby sells,
assigns and transfers unto _____________________ (______________) shares of the
Common Stock of Maxtor Corporation, Inc., a Delaware corporation (the
"Corporation"), standing in the undersigned's name on the books of the
Corporation represented by Certificate No. ____________ herewith, and does
hereby authorize the Corporation's transfer agent to transfer the said stock on
the books of the Corporation.
Dated:
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Hynix Semiconductor America Inc.
By:
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Name:
Title:
