EXHIBIT 10.3
GUARANTY
This Guaranty (this "Guaranty") is made as of September 2, 2001, by
Maxtor Corporation, a corporation organized and existing under the laws of the
State of Delaware with its office at 000 XxXxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 ("Guarantor"), to and for the benefit of CIT Technologies
Corporation, a corporation organized under the laws of the State of Michigan,
successor in interest to AT&T Commercial Finance Corporation and its assignees,
with an address at 0000 Xxxxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx
00000, and its assignees (collectively the "Beneficiary").
RECITALS
A. Beneficiary and Hynix Semiconductor America Inc., formerly known
as Hyundai Electronics America, Inc. ("HSA"), entered into that certain Master
Equipment Lease Agreement, (as amended, modified, renewed, extended, restated or
supplemented, the "Master Lease") dated January 17, 1997, under which
Beneficiary agreed to lease to HSA certain media manufacturing, assembly and
test equipment.
B. Subsequent to the execution of the Master Lease, HSA and
Beneficiary entered into Master Equipment Lease Agreement Schedules (as amended,
modified, renewed, extended, restated or supplemented, the "Schedules"),
pursuant to which Beneficiary leased to HSA certain equipment, as more
particularly described in the Schedules (the "Equipment").
C. Pursuant to those certain Assignment and Assumption Agreements,
dated October 1, 1998, October 10, 1998, March 31, 1999 and June 18, 1999, by
and between HSA and MMC Technology Inc. ("MMC"), HSA assigned to MMC all of
HSA's right, title and interest as Lessee, in and to certain of the Schedules
and the Master Lease relating to said Schedules, which Schedules are listed on
the attached Exhibit A (as amended, modified, renewed, extended, restated or
supplemented, the "Assigned Equipment Schedules"), and MMC assumed all such
right, title, interest and obligations relating thereto (collectively, the "MMC
Assignment and Assumption Documents"). Pursuant to the MMC Assignment and
Assumption Documents, HSA acknowledged and agreed that it would remain
responsible for all obligations imposed upon the Lessee under the Assigned
Equipment Schedules.
D. Pursuant to that certain Guaranty (the "Original Guaranty"),
dated July 17, 1997, Hyundai Electronics Industries Co., Ltd. (now known as
Hynix Semiconductor Inc.) ("HEI") guaranteed the payment and performance of
HSA's obligations under the Original Agreements, including the Assigned
Equipment Schedules and other obligations. In conjunction with the MMC
Assignment and Assumption Documents, HEI executed and delivered in favor of
Beneficiary Confirmations of Guaranty, pursuant to which HEI acknowledged and
confirmed that the Original Guaranty continued in full force and effect.
E. Pursuant to that certain Agreement and Plan of Reorganization
dated as of August 15, 2001, between and among HSA, MMC, Lime Acquisition
Corporation ("Merger Sub") and Guarantor, Guarantor intends to acquire MMC from
HSA through the merger of Merger Sub with and into MMC (the "Merger"), with MMC
being the surviving corporation. Pursuant to and as a requirement for
authorization of the Merger, Guarantor has agreed to guarantee the payment
and performance of MMC's obligations under the Assigned Equipment Schedules and
the MMC Assignment and Assumption Documents (the Assigned Equipment Schedules
and the MMC Assignment and Assumption Documents are herein collectively referred
to as the "Agreements".)
F. Prior to the consummation of the Merger, MMC was a wholly owned
subsidiary of HSA.
G. Upon consummation of the Merger, MMC shall be a wholly-owned
subsidiary of Guarantor and Guarantor will derive commercial benefit from the
provisions of this Guaranty.
H. The Original Guaranty shall remain in full force and effect. The
Original Guaranty and this Guaranty and any other Guaranty given at any time by
any person or entity in favor of Beneficiary relating to any of the Agreements
are intended to be the joint and several obligations of said guarantors.
AGREEMENT
NOW, THEREFORE, Guarantor agrees as follows:
1. Guaranty and Indemnity
1.1 In order to induce Beneficiary to consent to the Merger and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Guarantor hereby irrevocably and unconditionally guarantees
to Beneficiary, as a primary obligor and not as merely a surety, the due, full
and punctual observance and performance of all of the terms, conditions and
covenants on the part of MMC contained in the Agreements and the payment of each
and every sum which from time to time MMC is liable to pay under the Agreements
(including interest accruing on or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or similar
proceeding, relating to MMC, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) and which is not paid on
the due date (whether by acceleration or otherwise), and accordingly Guarantor
undertakes to pay any such sum immediately on Beneficiary's request.
1.2 Guarantor hereby irrevocably and unconditionally guarantees to
pay interest (both before and after judgment) on all such sums demanded pursuant
to Section 1.1 for the period from and including the date of first demand for
payment thereof until payment in full, such interest being payable and
calculated at the rate and in the manner stipulated in the Agreements in respect
of overdue amounts (or if there is no such stipulation in the Agreements, then
at the highest prime rate published in the "Money Rates" section of The Wall
Street Journal on the date of first demand for payment plus two percent (2%) per
annum). (If The Wall Street Journal no longer publishes prime rate information,
Beneficiary shall select a different publication and furnish Guarantor with
notice of said selection.)
1.3 Guarantor shall indemnify and hold Beneficiary harmless on demand
against any loss sustained by Beneficiary as a result of any of MMC's payment
obligations under the
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Agreements being or becoming void, voidable or unenforceable for any reason
whatsoever, whether or not known to Beneficiary.
1.4 The obligations of Guarantor hereunder shall be continuing and
accordingly shall not be satisfied by any intermediate payment of any sum
outstanding under the Agreements but shall remain in full force and effect until
all sums which may at any time be outstanding under the Agreements have been
paid in full and all other obligations of MMC under the Agreements have been
discharged in full.
1.5 Beneficiary shall not be obligated, before making any demand of
Guarantor hereunder, to make any demand of MMC or any other person or entity
directly or indirectly obligated under the Agreements (an "Other Person"), to
take any legal proceedings against MMC or any Other Person, to make or file any
claim in a winding-up or dissolution of MMC or any Other Person, or to exercise
any right which Beneficiary may have under any security or against any other
guarantor or surety for the obligations of MMC under the Agreements.
1.6 Guarantor hereby waives notice of acceptance of this Guaranty and
notice of any liability to which it may apply, and waives diligence,
presentment, demand of payment, protest, notice of dishonor, nonperformance, or
nonpayment of any such liability, suit or taking of other action by Beneficiary
against, and any other notice to, any party liable thereon (including Guarantor
or any other guarantor), all affirmative defenses, offsets and counterclaims
against Beneficiary, any right to the benefit of any security or statute of
limitations, any requirement that Beneficiary proceed first against MMC or any
Other Person, any other guarantor or any collateral security, and all defenses
based on suretyship or impairment of collateral. Guarantor hereby waives any
right to require that Beneficiary apply any payments or proceeds received toward
satisfaction of the obligations guaranteed hereunder in any particular order,
including any right to require Beneficiary to apply payments first to principal.
Guarantor hereby unconditionally and irrevocably waives and releases any and all
claims (as defined in and under Xxxxxxx 000 xx Xxxxx 00, Xxxxxx Xxxxxx Code and
any successor statute or code) against MMC now or hereafter arising out of or
related directly or indirectly to any of the obligations of Guarantor under the
Guaranty or any liabilities of MMC to Beneficiary, including (without
limitation) any and all such claims arising from rights of subrogation,
indemnity, reimbursement, contribution or setoff of Guarantor against MMC,
whether arising by contract or otherwise.
1.7 Beneficiary may, at any time and from time to time, without the
consent of or notice to Guarantor, without incurring any responsibility to
Guarantor, and without impairing or releasing the obligations of Guarantor under
this Guaranty:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
obligations guaranteed hereunder, any security therefor, or any
liability incurred directly or indirectly in respect thereof, and the
guarantee herein made shall apply to the obligations guaranteed
hereunder as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or
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mortgaged to secure or howsoever securing, the obligations guaranteed
hereunder any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against MMC
or any Other Person or others or otherwise act or refrain from acting;
(d) settle or compromise, as against MMC or any Other Person,
any of the obligations guaranteed hereunder, any security therefor, or
any liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof;
(e) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of MMC to Beneficiary under the Agreements
regardless of what liability or liabilities of MMC remain unpaid;
(f) consent to or waive any breach of, or any act, omission or
default under the Agreements or otherwise amend, modify or supplement
the Agreements; and/or
(g) act or fail to act in any manner referred to in this
Guaranty which may deprive Guarantor of its right to subrogate against
MMC to recover full indemnity for any payments made pursuant to this
Guaranty.
1.8 The obligations of Guarantor hereunder are absolute, continuing,
unlimited, independent and unconditional and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
diminished, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including without limitation:
(a) any extension of time (whether as to payment or otherwise)
or other indulgence given by Beneficiary to MMC or any Other Person in
respect of any obligation of MMC or any Other Person under the
Agreements;
(b) any variation of any provision of the Agreements or this
Guaranty (whether or not Guarantor is a party to or cognizant of the
same);
(c) any action or inaction by Beneficiary as contemplated in
Section 1.7;
(d) any illegality, invalidity, irregularity or
unenforceability of any provision of the Agreements or of any part of
the obligations guaranteed hereunder;
(e) any defense, set-off or counterclaim (other than a defense
of payment or performance) which may at any time be available to or be
asserted by MMC against Beneficiary;
(f) any dissolution, winding-up or corporate reorganization of
MMC or Guarantor;
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(g) any transfer or extinction of any of the liabilities of
MMC or Guarantor by any law, regulation, decree, judgment, order or
similar instrument;
(h) any other act, omission, circumstance or thing which, but
for this provision, would or might constitute a legal or equitable
discharge or defense of a surety;
(i) the failure by the Beneficiary to take any steps to
perfect and maintain its security interest in, or to preserve its rights
to, any security or collateral relating to the obligations guaranteed
hereunder;
(j) any judicial or governmental action affecting Beneficiary,
the Equipment, the Agreements, or the obligations guaranteed hereunder,
including, but not limited to, Beneficiary's release from the
obligations guaranteed hereunder or the rejection or disaffirmance of
the Agreements or other agreement or any of the terms thereof;
(k) any assignment or transfer of any rights relating to the
obligations guaranteed hereunder; or
(l) the disallowance of all or any portion of Beneficiary's
claim(s) for repayment of the guaranteed obligations under any
bankruptcy or insolvency law or any other law regarding the rights of
creditors generally, including, without limitation, Xxxxxxx 000 xx Xxxxx
00 xx xxx Xxxxxx Xxxxxx Code.
1.9 Any moneys received or recovered by Beneficiary hereunder may at
its discretion be credited to any suspense or impound account and may be held in
that account for so long as it thinks fit pending their application at its
discretion from time to time in or towards payment of sums from time to time
falling due from MMC under the Agreements.
1.10 So long as any sums are or may become outstanding under the
Agreements, any right which Guarantor may have by reason of the performance of
its obligations hereunder:
(a) to be indemnified by MMC;
(b) to prove in a winding-up of MMC for any moneys owed to it;
(c) to claim any contribution from any other surety for MMC's
obligations under the Agreements;
(d) to take the benefit, in whole or in part, of any security
held by Beneficiary for the obligations of MMC under the Agreements; or
(e) to be subrogated to any of Beneficiary's rights under the
Agreements:
shall not be exercisable by it without the prior written consent of Beneficiary
and then only in such manner and upon such terms as Beneficiary requires, and
Guarantor shall hold any moneys at any time received or recovered by it as a
result of the exercise of any such right in trust for
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Beneficiary for application in or towards payment of sums from time to time
falling due from MMC under the Agreements.
1.11 Guarantor shall indemnify Beneficiary against any loss or
expense, including legal fees, which it may sustain or incur as a consequence of
any default by Guarantor in the performance of any of the obligations expressed
to be assumed by it herein.
1.12 Guarantor agrees that all payments made by MMC or Guarantor to
Beneficiary will, when made, be final. Guarantor agrees that if any such payment
is recovered from or repaid by Beneficiary, in whole or in part, in any
bankruptcy, insolvency or similar proceeding instituted by or against MMC or
Guarantor, this Guaranty shall continue to be fully applicable to the
obligations guaranteed hereunder to the same extent as though the payment so
recovered or repaid had never been originally made.
2. Deductions and Taxes
2.1 All sums payable by Guarantor pursuant to this Guaranty
(collectively, the "Payments") shall be paid, except to the extent required by
law in each case:
(a) free of any restriction or condition;
(b) without deduction or withholding on account of any other
amount, whether by way of set-off or otherwise; and
(c) free and clear and without any deduction or withholding on
account of any tax.
2.2 If Guarantor is required at any time under any law to withhold or
deduct any tax from any Payment, the sum payable by Guarantor in respect of
which such withholding or deduction is required to be made shall be increased to
the extent necessary to ensure that, after the making of the required
withholding or deduction, Beneficiary receives and retains (free from any
liability in respect of any such withholding or deduction) a net sum equal to
the sum which it would have received and retained if no such withholding or
deduction had been made or required to be made. Any such withheld or deducted
amount shall be immediately paid to the competent tax office, and Guarantor
shall obtain from the competent tax authorities and forward to Beneficiary a
certificate of payment of such withholding tax or deduction in such form as
shall be acceptable to the tax authorities having jurisdiction over Beneficiary.
3. Representations and Warranties
3.1 Guarantor represents and warrants to Beneficiary that:
(a) it is duly incorporated and validly existing under the
laws of the State of Delaware and has the necessary corporate power to
enter into, exercise its rights and timely perform and comply with its
obligations under this Guaranty;
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(b) all corporate action required on the part of Guarantor,
its shareholders, directors and officers to authorize this Guaranty and
its execution and performance have been properly taken in accordance
with the laws of the State of Delaware and its Certificate of
Incorporation or other constitutional documents, and this Guaranty has
been validly executed and constitutes legal, valid, and binding
obligations on its part enforceable in accordance with the terms hereof;
(c) all approvals (governmental or otherwise) which are
required to enable Guarantor to enter into this Guaranty and to perform
and comply with its obligations hereunder have been obtained and are in
full force and effect;
(d) entering into this Guaranty will not infringe or
constitute a default or breach of any other agreement to which Guarantor
is a party, which could reasonably be expected to have a Material
Adverse Effect (as hereinafter defined);
(e) there is no current, pending or, so far as Guarantor is
aware, threatened litigation, arbitration or administrative proceeding
against or affecting Guarantor before any court, governmental agency or
arbitrator which may, in any one case or in the aggregate, be reasonably
expected to have a Material Adverse Effect (as hereinafter defined).
(f) its obligations to pay principal, interest and all other
amounts payable hereunder rank and will continue to rank at least pari
passu in all respects with all other present and future unsecured and
non-subordinated loans, debts, guarantees or other obligations, except
for such claims as may be preferred by operation of law; and
(g) Guarantor is the legal and beneficial owner of all of the
issued and outstanding stock of MMC.
For purposes of this Guaranty, the term "Material Adverse Effect" shall mean a
material adverse effect on or relating to (i) the conditions, operations,
assets, businesses or prospects of MMC or Guarantor; (ii) MMC's or Guarantor's
ability to pay or perform its obligations under the Agreements or this Guaranty,
as applicable, or (iii) Beneficiary's ability to exercise its rights and/or
enforce its remedies under the Agreements or this Guaranty.
4. Covenants of Guarantor; Conditions to Effectiveness of Guaranty.
4.1 Guarantor hereby covenants with Beneficiary that for so long as
the Agreements remain in effect:
(a) it will furnish to Beneficiary:
(i) as soon as the same become available, copies of all
documents sent to Guarantor's creditors generally in their
capacity as such;
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(ii) with reasonable promptness, details of any material
litigation, arbitration or administrative proceeding current or
threatened by or against or otherwise affecting Guarantor, which
could reasonably be expected to have a Material Adverse Effect;
and
(iii) within such period as Beneficiary may specify, all
such other information relating to its financial condition and
business operations as Beneficiary may reasonably request;
(b) it will promptly advise Beneficiary in writing upon
becoming aware of:
(i) any material adverse factor which may inhibit
Guarantor in the performance of its obligations hereunder,
including, without limitation, any material adverse change in
Guarantor's, MMC's, or any of its or their subsidiaries'
financial condition; and
(ii) any such current, pending or threatened litigation,
arbitration of administrative proceeding as is referred to in
Section 3.1(e);
(c) it will at all times comply with any law or directive and
any conditions of any consent relating to this Guaranty;
(d) it will ensure that the payment obligations hereunder rank
and will at all times rank at least equally and ratably in all respects
with all its other unsecured and unsubordinated indebtedness, except for
such claims as may be preferred by operation of law;
(e) it will not merge or consolidate with or into any other
corporation unless (i) MMC is not in default under its obligations under
the Agreements; (ii) Guarantor is not in default under this Guaranty;
(iii) Guarantor is the surviving entity of any such merger or
consolidation; and (iv) Guarantor's net worth immediately after such
merger or consolidation shall be at least equal to Guarantor's net worth
immediately preceding such merger or consolidation. The reference in
this Section 4.1(e) to "net worth" shall mean, on the particular date of
determination, all shareholder's equity on Guarantor's balance sheet
determined in accordance with generally accepted accounting principles
consistently applied; and
(f) it will not take any step with a view to dissolution,
liquidation or winding-up.
4.2 As to each Agreement, this Guaranty shall become effective
automatically and without further action upon delivery by Guarantor to
Beneficiary of an acknowledgement substantially in the form attached as Exhibit
B hereto confirming that Guarantor has received and reviewed the Agreement and
that the Agreement is to be included as one of the "Agreements" (as defined in
this Guaranty).
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5. Calculations and Evidence
5.1 The entries made in the accounts maintained by Beneficiary in
respect of this Guaranty or the Agreements in accordance with its usual practice
shall, in the absence of manifest error, be conclusive evidence of the existence
and amounts of the obligations of Guarantor and/or MMC therein recorded.
5.2 A certificate issued by Beneficiary as to any applicable rate of
interest, lease rate factor or daily interest charge, the amount advanced under
the Agreements or any sum, fee or other payment payable to it under this
Guaranty or the Agreements and any other certificate, determination,
notification or opinion of Beneficiary provided for in this Guaranty or the
Agreements shall, in the absence of manifest error, be conclusive evidence that
such is so payable or as to any other matter covered thereby.
6. Set-Off
6.1 Guarantor authorizes Beneficiary, without prior notice to
Guarantor, to set-off any liabilities of Beneficiary to MMC or Guarantor in or
towards the satisfaction of all or any of the obligations of MMC or Guarantor to
Beneficiary under the Agreements or this Guaranty, and for such purpose,
Beneficiary is authorized to use all or any part of any such credit balance or
liability to buy such other currencies as may be necessary to effect such
application or set-off.
6.2 Beneficiary shall not be obligated to exercise any of its rights
under Section 6.1, which rights shall be without prejudice and in addition to
any right of set-off, combination of accounts, lien or other right to which it
is any time otherwise entitled, whether by operation of law, contract or
otherwise.
7. Dispute Resolution
7.1 This Guaranty and all disputes arising out of or in connection
with this Guaranty shall be governed by, interpreted under, and construed and
enforceable in accordance with, the internal laws (without the application of
the conflict of laws principals) of the State of New Jersey, U.S.A. Guarantor
will, contemporaneous with its execution of this Guaranty, deliver to
Beneficiary an executed Consent to Jurisdiction and Service of Process in the
form attached as Exhibit C hereto.
8. Miscellaneous
8.1 Modifications. This Guaranty shall not be modified, amended,
canceled or altered in any way, and may not be modified by custom, usage of
trade or course of dealing, except by an instrument in writing signed by
Beneficiary.
8.2 Waiver. The performance of any obligation required of Guarantor
hereunder may be waived only by a written waiver signed by Beneficiary, and such
waiver shall be effective only with respect to the specific obligation
described. The waiver by Beneficiary of a breach of
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any provision of this Guaranty by Guarantor shall not operate or be construed as
a waiver of any subsequent breach of the same provision or another provision of
this Guaranty.
8.3 Severability. If any provision hereof is found invalid, illegal
or unenforceable pursuant to any executive, legislative, judicial or other
decree or decision, the remainder of this Guaranty shall remain valid, legal and
enforceable according to its terms, and such invalid, illegal or unenforceable
provision shall be replaced with a provision that approximates the substance and
spirit of the invalid, illegal or unenforceable provision as closely as possible
without being invalid, illegal or unenforceable.
8.4 Assignment. Guarantor shall not have the right, power or
authority to assign or transfer this Guaranty or any of its rights or
obligations hereunder to any third party. Beneficiary shall have the unqualified
right to assign or otherwise transfer this Guaranty or any portion thereof or
any benefits hereunder, in whole or in part, to any party(ies), without the
consent of Guarantor or MMC and such assignee(s) shall have all of the rights,
privileges and powers granted hereunder to Beneficiary as it would have had if
it had been a party to this Guaranty and shall have the right to rely upon this
Guaranty.
8.5 Third Party Benefits. This Guaranty shall be binding upon, and
inure to the benefit of, Beneficiary and its successors and assigns.
8.6 Time. Time shall be of the essence of this Guaranty, but no
failure on the part of Beneficiary to exercise, and no delay on its part in
exercising, any right or remedy under this Guaranty will operate as a waiver
thereof, nor will any single or partial exercise of any right or remedy preclude
any other or further exercise thereof or the exercise of any other right or
remedy.
8.7 Cumulation of Remedies. The rights and remedies provided in this
Guaranty are cumulative and not exclusive of any rights or remedies provided by
law.
8.8 Notices. All notices, demands, requests, consents or other
communications hereunder shall be in writing and in English and shall be given
by personal delivery, by express courier, by registered or certified mail with
return receipt requested, or by telex or facsimile, to the parties at the
addresses shown below, or to such other address as may be designated by written
notice given by either party to the other party. Any communication under this
Guaranty shall be deemed to be received upon delivery if personally delivered,
one (1) day after dispatch if sent by express courier, three (3) days after
dispatch if sent by registered or certified mail with return receipt requested,
or upon dispatch if sent by telex or facsimile.
To Guarantor:
Maxtor Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
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To Beneficiary:
CIT Technologies Corporation
0000 Xxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Chief Counsel
Facsimile: (000) 000-0000
8.9 Counterparts. This Guaranty may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.10 Captions. The section headings and captions contained herein are
for purposes of reference and convenience only and shall not in any way affect
the meaning or interpretation of this Guaranty.
8.11 Number and Gender. Whenever used in this Guaranty, the singular
terms shall include the plural and the plural the singular, and the use of any
gender shall be applicable to all genders.
8.12 Currency. All obligations guaranteed hereunder shall be measured
in U.S. dollars.
8.13 Costs and Expenses. Guarantor agrees to pay all costs and
expenses, including without limitation, all court costs and legal fees and
expenses incurred by Beneficiary in connection with the enforcement of this
Guaranty.
8.14 Waiver of Jury Trial. GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING BROUGHT
TO ENFORCE OR DEFEND THIS GUARANTY.
8.15 Assistant Secretary's Certificate. Contemporaneous with the
execution of this Guaranty, Guarantor will deliver to Beneficiary a duly
executed Assistant Secretary's Certificate in the form of Exhibit D hereto.
8.16 Advice of Counsel; Understanding With Respect to Waivers and
Consents. GUARANTOR CONFIRMS AND ACKNOWLEDGES THAT IT HAS CONSULTED LEGAL
COUNSEL AND SUCH OTHER ADVISORS AS IT DEEMS APPROPRIATE IN CONNECTION WITH ITS
REVIEW OF THE AGREEMENTS AND ITS NEGOTIATION, EXECUTION AND DELIVERY OF THIS
GUARANTY AND THE CONSENTS TO JURISDICTION AND SERVICE OF PROCESS ATTACHED HERETO
AS EXHIBIT C. Guarantor understands and agrees that each of the waivers and
consents set forth herein is made with full knowledge of its significance and
consequences, with the understanding that events giving rise to any defense or
right waived may diminish, destroy or otherwise adversely affect rights which
Guarantor otherwise may have against Beneficiary or others or against any
collateral.
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8.17 Entire Agreement. This document contains the entire agreement of
the parties concerning the guarantee of Agreements by the undersigned, and may
not be amended or modified except in a writing signed by Guarantor and
Beneficiary.
8.18 Joint and Several. Guarantor's obligations are intended to and
shall be joint and several with any other person or entity executing and
delivery, at any time, guaranty agreements in favor of Beneficiary relating to
the Agreements.
IN WITNESS WHEREOF, Guarantor executed this Guaranty as of the date
first above written.
MAXTOR CORPORATION CIT TECHNOLOGIES CORPORATION
By: /s/ XXXXX X. XXXXXXX By: /s/ S. XXXX XXXXXXXX
---------------------------------- -------------------------------
Name: Xxxxx X. Xxxxxxx Name: S. Xxxx Xxxxxxxx
------------------------------- -----------------------------
Title: Senior Vice President, Title: VP & Asst. Gen. Counsel
General Counsel and Secretary ----------------------------
------------------------------
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EXHIBIT A
ASSIGNED EQUIPMENT SCHEDULES
Equipment Schedule IA0 Dated June 18, 1997
Equipment Schedule IA1 Dated September 18, 1997
Equipment Schedule IA2 Dated October 17, 1997
Equipment Schedule IA3 Dated October 18, 1997
Equipment Schedule IA4-1 Dated November 18, 1997
Equipment Schedule IA4-2 Dated November 18, 1997
Equipment Schedule IA4-3 Dated November 18, 1997
Equipment Schedule IA4-4 Dated November 18, 1997
Equipment Schedule IA5 Dated February 15, 1998
Equipment Schedule IA6 Dated July 22, 1998
Equipment Schedule IA7-A Dated January 16, 1999
Equipment Schedule IA7-A(1) Dated January 16, 1999
Equipment Schedule IA7-B Dated January 16, 1999
Equipment Schedule IA7-C Dated January 16, 1999
Equipment Schedule IA8-A Dated February 15, 1999
Equipment Schedule IA8-B Dated February 15, 1999
Equipment Schedule IA8-C Dated February 15, 1999
Equipment Schedule IA8-D Dated February 15, 1999
Equipment Schedule IA8-E Dated February 15, 1999
Equipment Schedule II-H Dated October 18, 1997
Equipment Schedule II-C Dated October 18, 1997
Equipment Schedule MMC-001 Dated December 23, 1998
Equipment Schedule PLATE-1 Dated April 17, 1998
Equipment Schedule POLISH-1 Dated February 15, 1998
Equipment Schedule POLISH-2 Dated February 15, 1998
Equipment Schedule POLISH-3 Dated December 1, 1998
Equipment Schedule TS-1 Dated October 18, 1997
Equipment Schedule TS-2 Dated October 18, 1997
Equipment Schedule TS-3 Dated October 18, 1997
Equipment Schedule TS-4 Dated October 18, 1997
Equipment Schedule 001U Dated June 18, 1997
Equipment Schedule 002U Dated June 18, 1997
Equipment Schedule 003U Dated June 18, 1997
Equipment Schedule 004U Dated June 18, 1997
Equipment Schedule 005U Dated June 18, 1997
Equipment Schedule 006U Dated June 18, 1997
Equipment Schedule 007U Dated August 22, 1997
Equipment Schedule 008U Dated August 22, 1997
Equipment Schedule 009U Dated September 22, 1997
Equipment Schedule 010U Dated September 22, 1997
Equipment Schedule 011U Dated October 10, 1997
EXHIBIT B
REVIEW AND ACKNOWLEDGEMENT OF AGREEMENTS
Reference is made to the Guaranty dated as of September 2, 2001 by Maxtor
Corporation ("Guarantor") in favor of CIT Technologies Corporation
("Beneficiary"). Capitalized terms used and not otherwise defined herein have
the meanings assigned to them in the Guaranty.
Guarantor confirms that it has received and reviewed the documents listed
below (the "Subject Agreements") and that these documents are to be included as
"Agreements" (as defined in the Guaranty), the payment and performance of MMC
under which is guaranteed by Guarantor:
- MASTER LEASE AGREEMENT (AS DEFINED IN THE GUARANTY)
- ASSIGNED EQUIPMENT SCHEDULES (AS DEFINED IN THE GUARANTY)
- ASSIGNMENT AND ASSUMPTION AGREEMENTS (AS DEFINED IN THE GUARANTY)
Attached hereto as Exhibit A is a true and correct copy of the minutes of
the meeting (or other corporate action) of the Board of Directors of Guarantor
duly adopting resolutions (a) approving the execution and delivery of this
acknowledgement and the guaranty, (pursuant to the Guaranty) of the obligations
of MMC under the Subject Agreements and (b) authorizing the officer whose
signature appears below to execute and deliver this acknowledgement, and such
resolutions have not been amended or rescinded and are currently in full force
and effect.
IN WITNESS WHEREOF, the undersigned officer of Guarantor has duly executed
this acknowledgement as of ________, 2001.
MAXTOR CORPORATION
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
14
REVIEW AND ACKNOWLEDGEMENT OF AGREEMENTS
Reference is made to the Guaranty dated as of September 2, 2001 by Maxtor
Corporation ("Guarantor") in favor of CIT Technologies Corporation
("Beneficiary"). Capitalized terms used and not otherwise defined herein have
the meanings assigned to them in the Guaranty.
Guarantor confirms that it has received and reviewed the documents listed
below (the "Subject Agreements") and that these documents are to be included as
"Agreements" (as defined in the Guaranty), the payment and performance of MMC
under which is guaranteed by Guarantor:
- MASTER LEASE AGREEMENT (AS DEFINED IN THE GUARANTY)
- ASSIGNED EQUIPMENT SCHEDULES (AS DEFINED IN THE GUARANTY)
- ASSIGNMENT AND ASSUMPTION AGREEMENTS (AS DEFINED IN THE GUARANTY)
Attached hereto as Exhibit A is a true and correct copy of the minutes of
the meeting (or other corporate action) of the Board of Directors of Guarantor
duly adopting resolutions (a) approving the execution and delivery of this
acknowledgement and the guaranty, (pursuant to the Guaranty) of the obligations
of MMC under the Subject Agreements and (b) authorizing the officer whose
signature appears below to execute and deliver this acknowledgement, and such
resolutions have not been amended or rescinded and are currently in full force
and effect.
IN WITNESS WHEREOF, the undersigned officer of Guarantor has duly executed
this acknowledgement as of ________, 2001.
MAXTOR CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President, General
--------------------------------
Counsel and Secretary
--------------------------------
REVIEW AND ACKNOWLEDGEMENT OF AGREEMENTS
Reference is made to the Guaranty dated as of September 2, 2001 by Maxtor
Corporation ("Guarantor") in favor of CIT Technologies Corporation
("Beneficiary"). Capitalized terms used and not otherwise defined herein have
the meanings assigned to them in the Guaranty.
Guarantor confirms that it has received and reviewed the documents listed
below (the "Subject Agreements") and that these documents are to be included as
"Agreements" (as defined in the Guaranty), the payment and performance of MMC
under which is guaranteed by Guarantor:
- MASTER LEASE AGREEMENT (AS DEFINED IN THE GUARANTY)
- ASSIGNED EQUIPMENT SCHEDULES (AS DEFINED IN THE GUARANTY)
- ASSIGNMENT AND ASSUMPTION AGREEMENTS (AS DEFINED IN THE GUARANTY)
Attached hereto as Exhibit A is a true and correct copy of the minutes of
the meeting (or other corporate action) of the Board of Directors of Guarantor
duly adopting resolutions (a) approving the execution and delivery of this
acknowledgement and the guaranty, (pursuant to the Guaranty) of the obligations
of MMC under the Subject Agreements and (b) authorizing the officer whose
signature appears below to execute and deliver this acknowledgement, and such
resolutions have not been amended or rescinded and are currently in full force
and effect.
IN WITNESS WHEREOF, the undersigned officer of Guarantor has duly executed
this acknowledgement as of August 30, 2001.
MAXTOR CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President, General
--------------------------------
Counsel and Secretary
--------------------------------
EXHIBIT A
BOARD RESOLUTIONS
MAXTOR CORPORATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxxx Xxxxxxx, in my capacity as Assistant Secretary of Maxtor
Corporation, a Delaware corporation (the "CORPORATION"), and on behalf of the
Corporation, do hereby certify as set forth below:
1. I am the duly elected, qualified and acting Assistant Secretary of
the Corporation, and as such, I am authorized to execute and deliver this
certificate on behalf of the Corporation.
2. Attached hereto as EXHIBIT A is a true, complete and correct copy of
resolutions duly and validly adopted at a regular meeting of the board of
directors of the Corporation (the "BOARD") held on August 7, 2001, pursuant to
which the Board approved the execution and delivery of the Agreement and Plan
of Reorganization (the "AGREEMENT"), by and among the Corporation, Lime
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary
of the Corporation ("MERGER SUB"), MMC Technology, Inc., a California
corporation, and Hynix Semiconductor America, Inc., a California corporation,
the performance by the Corporation of all of the terms thereof, and the
consummation of all of the transactions contemplated thereby. Such resolutions
have not been amended or modified, are in full force and effect and are the
only resolutions adopted by the Board relating to the Agreement and the
transactions contemplated thereby.
IN WITNESS WHEREOF, the undersigned has caused this Assistant Secretary's
Certificate to be executed as of the 15th day of August 2001.
MAXTOR CORPORATION
/s/ XXXXXXX XXXXXXX
------------------------------------
Xxxxxxx Xxxxxxx
Assistant Secretary
EXHIBIT A
RESOLUTIONS OF THE
BOARD OF DIRECTORS OF
MAXTOR CORPORATION
AUGUST 7, 2001
I. AUTHORIZATION OF MERGER.
WHEREAS, the Board of Directors (the "Board") of Maxtor Corporation, a
Delaware corporation (the "Corporation") has determined that it is desirable
and in the best interests of the Corporation and its stockholders, based on
the recommendation of the Affiliated Transactions Committee, to enter into
the Agreement and Plan of Reorganization by and between the Corporation,
Lime Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of the Corporation ("Merger Sub"), MMC Technology, Inc., a
California corporation (the "Target"), and Hynix Semiconductor America Inc.,
a California corporation, in substantially the form attached hereto as
Attachment I (the "Merger Agreement"), providing for, among other things,
the merger of the Target with and into Merger Sub pursuant to which the
Target shall be the surviving corporation and become a wholly-owned
subsidiary of the Corporation (the "Merger").
WHEREAS, the Board has determined, based on the recommendation of the
Affiliated Transactions Committee, that is desirable and in the best
interests of the Corporation and its stockholders to consummate the
transactions contemplated by the Merger Agreement.
NOW, THEREFORE, BE IT RESOLVED, that, based on the recommendation of the
Affiliated Transactions Committee, the terms and conditions of the Merger as
set forth in the Merger Agreement are hereby authorized and approved, with
such changes and modifications as the officers of the Corporation may
consider necessary or appropriate.
RESOLVED FURTHER, that the form of the Merger Agreement, substantially in
the form attached hereto as Attachment 1, is hereby approved, and the
officers of the Corporation be, and each of them is, authorized and directed
to execute and deliver the Merger Agreement and such other agreements as are
provided as set forth in the exhibits to the Merger Agreement, and such
other instruments and documents, as may be necessary or appropriate to
consummate the transactions contemplated by the Merger, together with such
changes, modifications, additions or deletions as the officer of the
Corporation executing the same may deem necessary or appropriate, such
approval to be conclusively evidenced by the execution and deliver thereof.
RESOLVED FURTHER, that the officers of the Corporation be, and each of them
is, authorized and directed to create and form a wholly owned subsidiary of
the Corporation under Delaware law named Lime Acquisition Corporation.
RESOLVED FURTHER, that in furtherance of the Merger, the officers of the
Corporation be, and each of them is, authorized and directed to execute and
file with the Secretary of State of the State of California a certificate
of merger ("Certificate of Merger") pursuant to the California General
Corporation Law, such Certificate of Merger to be in the form approved by
the officer executing the same, and, if appropriate, such other
certificates, instruments, and documents as may be required to be filed by
the Corporation with the Secretary of State of the State of California or
any other state, together with such changes, modifications, additions or
deletions as the officer of the Corporation executing the same may deem
necessary or appropriate, such approval to be conclusively evidenced by the
execution and filing thereof.
RESOLVED FURTHER, that all prior actions taken by any officer of the
Corporation with respect to the preparation, negotiation and execution of
the Merger Agreement and all agreements related thereto and otherwise to
effect the purposes and intent of the Merger Agreement, are hereby
ratified, confirmed and approved.
2. ENABLING RESOLUTIONS.
RESOLVED, that any officer of the Corporation is hereby authorized to take
such further actions as any of them shall deem necessary or advisable in
order to carry out and perform the purpose and intent of the foregoing
resolutions.
RESOLVED FURTHER, that any actions taken prior to the date of the
foregoing resolutions by any officer of the Corporation that are within
the authority conferred upon such officer, are hereby ratified, confirmed
and approved as the acts and deeds of the Corporation.
EXHIBIT C
CONSENT TO JURISDICTION
AND SERVICE OF PROCESS
IN THE UNITED STATES
Reference is made to the attached Guaranty ("Agreement") dated the 2nd day
of September, 2001 by Maxtor Corporation ("Guarantor") in favor of CIT
Technologies Corporation ("CIT"). As an inducement for CIT to execute and
deliver such Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor hereby
unconditionally and irrevocably consents to the jurisdiction of any court of
record of the State of New Jersey, or of the United States District Court for
the District of New Jersey, and the courts of any other appropriate
jurisdiction as CIT may elect in any action or proceeding arising out of or
relating to such Agreement. Guarantor hereby consents to the jurisdiction and
Guarantor hereby accepts the jurisdiction of such courts, for the purpose of
any such action or proceeding.
Guarantor unconditionally and irrevocably consents to the service of
process in any action or proceeding in said courts by CIT mailing such service
of process by United States Registered or Certified Mail, postage prepaid, or
by receipt courier to Guarantor at the address set forth below, or to such
other address as the Guarantor provides to CIT in writing. If the Guarantor is
a foreign government, or entity thereof, Guarantor hereby further
unconditionally and irrevocably waives any immunity or claim for immunity from
the jurisdiction of the courts of the United States or any State thereof which
it may otherwise have.
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND THIS GUARANTY.
Guarantor: Maxtor Corporation
_________________________
_________________________
_________________________
Attention: ______________
Facsimile: ______________
[Remainder of page intentionally left blank]
15
MAXTOR CORPORATION
By:
-----------------------------------
Authorized Signature
--------------------------------------
Print Name
--------------------------------------
Title
Accepted by CIT Technologies Corporation this ______ day of ____________, 2001.
CIT TECHNOLOGIES CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
16
CONSENT TO JURISDICTION
AND SERVICE OF PROCESS
IN THE UNITED STATES
Reference is made to the attached Guaranty ("Agreement") dated the 2nd day
of September, 2001 by Maxtor Corporation ("Guarantor") in favor of CIT
Technologies Corporation ("CIT"). As an inducement for CIT to execute and
deliver such Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor hereby
unconditionally and irrevocably consents to the jurisdiction of any court of
record of the State of New Jersey, or of the United States District Court for
the District of New Jersey, and the courts of any other appropriate
jurisdiction as CIT may elect in any action or proceeding arising out of or
relating to such Agreement. Guarantor hereby consents to the jurisdiction and
Guarantor hereby accepts the jurisdiction of such courts, for the purpose of
any such action or proceeding.
Guarantor unconditionally and irrevocably consents to the service of
process in any action or proceeding in said courts by CIT mailing such service
of process by United States Registered or Certified Mail, postage prepaid, or
by receipt courier to Guarantor at the address set forth below, or to such
other address as the Guarantor provides to CIT in writing. If the Guarantor is
a foreign government, or entity thereof, Guarantor hereby further
unconditionally and irrevocably waives any immunity or claim for immunity from
the jurisdiction of the courts of the United States or any State thereof which
it may otherwise have.
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND THIS GUARANTY.
Guarantor: Maxtor Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
[Remainder of page intentionally left blank]
MAXTOR CORPORATION
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President, General Counsel
and Secretary
Accepted by CIT Technologies Corporation this ______ day of ____________, 2001.
CIT TECHNOLOGIES CORPORATION
By: /s/ S. XXXX XXXXXXXX
-----------------------------------
Name: S. Xxxx Xxxxxxxx
---------------------------------
Title: VP & Asst. Gen Counsel
--------------------------------
CONSENT TO JURISDICTION
AND SERVICE OF PROCESS
IN THE UNITED STATES
Reference is made to the attached Guaranty ("Agreement") dated the 2nd day
of September, 2001 by Maxtor Corporation ("Guarantor") in favor of CIT
Technologies Corporation ("CIT"). As an inducement for CIT to execute and
deliver such Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor hereby
unconditionally and irrevocably consents to the jurisdiction of any court of
record of the State of New Jersey, or of the United States District Court for
the District of New Jersey, and the courts of any other appropriate
jurisdiction as CIT may elect in any action or proceeding arising out of or
relating to such Agreement. Guarantor hereby consents to the jurisdiction and
Guarantor hereby accepts the jurisdiction of such courts, for the purpose of
any such action or proceeding.
Guarantor unconditionally and irrevocably consents to the service of
process in any action or proceeding in said courts by CIT mailing such service
of process by United States Registered or Certified Mail, postage prepaid, or
by receipt courier to Guarantor at the address set forth below, or to such
other address as the Guarantor provides to CIT in writing. If the Guarantor is
a foreign government, or entity thereof, Guarantor hereby further
unconditionally and irrevocably waives any immunity or claim for immunity from
the jurisdiction of the courts of the United States or any State thereof which
it may otherwise have.
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND THIS GUARANTY.
Guarantor: Maxtor Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
[Remainder of page intentionally left blank]
MAXTOR CORPORATION
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President, General Counsel
and Secretary
Accepted by CIT Technologies Corporation this ______ day of ____________, 2001.
CIT TECHNOLOGIES CORPORATION
By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
---------------------------------
Title: VP & Asst. Gen Counsel
--------------------------------
EXHIBIT D
ASSISTANT SECRETARY'S CERTIFICATE
I, _____________________, Assistant Secretary of Maxtor Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), hereby certify:
1. that attached hereto as Exhibit A is a true and correct copy of the
Articles of Incorporation of the Company, and all amendments thereto, as in
effect on the date hereof, which Articles of Incorporation and amendments
thereto continue and are in full force and effect;
2. that attached hereto as Exhibit B is a true and correct copy of the
Bylaws of the Company, including all amendments thereto as of the date hereof,
which Bylaws continue and are in full force and effect;
3. that attached hereto as Exhibit C is a true and correct copy of the
minutes of the meeting of the Board of Directors of the Company duly held on
August 7, 2001, at which a quorum of Directors was present and acting throughout
and adopted resolutions (i) approving the execution, delivery and performance of
a guarantee (the "Guaranty") to be made by the Company in favor of CIT
Technologies Corporation, and its assignees (collectively, the "Beneficiary")
under the Assigned Equipment Schedules and the MMC Assignment and Assumption
Documents (as defined in the Guaranty) (collectively, the "Agreements"), and
(ii) authorizing certain officers of the Company to execute and deliver the
Guaranty and any documents to be delivered by the Company pursuant thereto,
which resolutions have not been amended or rescinded and are currently in full
force and effect;
4. that the seal impression of each of the Directors of the Company affixed
on the minutes of the meeting of the Board of Directors referred to above is
genuine;
5. that the representations and warranties set forth in the Guaranty are,
true and correct as of the date hereof;
17
6. that the following persons hold the respective titles indicated opposite
their names, that the specimen signatures set forth opposite their titles are
their genuine signatures, and that each of them is authorized in the name of and
on behalf of the Company to execute and deliver the Guaranty and any other
documents and instruments contemplated therein and to bind the Company thereby:
Name Title Signature
---- ----- ---------
IN WITNESS WHEREOF, I have executed this Certificate on ____________, 2001.
_____________________________
Name
Title: Assistant Secretary
18
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxxx Xxxxxxx, Assistant Secretary of Maxtor Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), hereby certify:
1. that attached hereto as Exhibit A is a true and correct copy of the
Articles of Incorporation of the Company, and all amendments thereto, as in
effect on the date hereof, which Articles of Incorporation and amendments
thereto continue and are in full force and effect;
2. that attached hereto as Exhibit B is a true and correct copy of the
Bylaws of the Company, including all amendments thereto as of the date hereof,
which Bylaws continue and are in full force and effect;
3. that attached hereto as Exhibit C is a true and correct copy of the
minutes of the meeting of the Board of Directors of the Company duly held on
August 7, 2001, at which a quorum of Directors was present and acting throughout
and adopted resolutions (i) approving the execution, delivery and performance of
a guarantee (the "Guaranty") to be made by the Company in favor of CIT
Technologies Corporation, and its assignees (collectively, the "Beneficiary")
under the Assigned Equipment Schedules and the MMC Assignment and Assumption
Documents (as defined in the Guaranty) (collectively, the "Agreements"), and
(ii) authorizing certain officers of the Company to execute and deliver the
Guaranty and any documents to be delivered by the Company pursuant thereto,
which resolutions have not been amended or rescinded and are currently in full
force and effect;
4. that the seal impression of each of the Directors of the Company affixed
on the minutes of the meeting of the Board of Directors referred to above is
genuine;
5. that the representations and warranties set forth in the Guaranty are,
true and correct as of the date hereof;
6. that the following persons hold the respective titles indicated opposite
their names, that the specimen signatures set forth opposite their titles are
their genuine signatures, and that each of them is authorized in the name of and
on behalf of the Company to execute and deliver the Guaranty and any other
documents and instruments contemplated therein and to bind the Company thereby:
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxxxx Senior Vice President, /s/ XXXXX X. XXXXXXX
General Counsel & Secretary
IN WITNESS WHEREOF, I have executed this Certificate on August 30, 2001.
/s/ XXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
2
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxxx Xxxxxxx, Assistant Secretary of Maxtor Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), hereby certify:
1. that attached hereto as Exhibit A is a true and correct copy of the
Articles of Incorporation of the Company, and all amendments thereto, as in
effect on the date hereof, which Articles of Incorporation and amendments
thereto continue and are in full force and effect;
2. that attached hereto as Exhibit B is a true and correct copy of the
Bylaws of the Company, including all amendments thereto as of the date hereof,
which Bylaws continue and are in full force and effect;
3. that attached hereto as Exhibit C is a true and correct copy of the
minutes of the meeting of the Board of Directors of the Company duly held on
August 7, 2001, at which a quorum of Directors was present and acting throughout
and adopted resolutions (i) approving the execution, delivery and performance of
a guarantee (the "Guaranty") to be made by the Company in favor of CIT
Technologies Corporation, and its assignees (collectively, the "Beneficiary")
under the Assigned Equipment Schedules and the MMC Assignment and Assumption
Documents (as defined in the Guaranty) (collectively, the "Agreements"), and
(ii) authorizing certain officers of the Company to execute and deliver the
Guaranty and any documents to be delivered by the Company pursuant thereto,
which resolutions have not been amended or rescinded and are currently in full
force and effect;
4. that the seal impression of each of the Directors of the Company affixed
on the minutes of the meeting of the Board of Directors referred to above is
genuine;
5. that the representations and warranties set forth in the Guaranty are,
true and correct as of the date hereof;
6. that the following persons hold the respective titles indicated opposite
their names, that the specimen signatures set forth opposite their titles are
their genuine signatures, and that each of them is authorized in the name of and
on behalf of the Company to execute and deliver the Guaranty and any other
documents and instruments contemplated therein and to bind the Company thereby:
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxxxx Senior Vice President, /s/ XXXXX X. XXXXXXX
General Counsel & Secretary
IN WITNESS WHEREOF, I have executed this Certificate on August 30, 2001.
/s/ XXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
2
EXHIBIT A
ARTICLES OF INCORPORATION
3
PAGE 1
State of Delaware
Office of the Secretary of State
________________________________
I, XXXXXXX XXXXX WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
CORRECTION OF "MAXTOR CORPORATION", FILED IN THIS OFFICE ON THE FIRST DAY OF
MARCH, A.D. 2001, AT 8:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ XXXXXXX XXXXX WINDSOR
-----------------------------------------
[SEAL] Xxxxxxx Xxxxx Windsor, Secretary of State
2097120 8100 AUTHENTICATION: 1001731
010102374 DATE: 00-00-00
XXXXX XX XXXXXXXX
XXXXXXXXX XX XXXXX
DIVISION OF CORPORATIONS
FILED 08:30 AM 03/01/2001
010102374 - 2097120
CERTIFICATE OF CORRECTION
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MAXTOR CORPORATION
Maxtor Corporation (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1. The name of the Corporation is Maxtor Corporation.
2. A Restated Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on November 13, 2000
and said Certificate requires correction as permitted by subsection (f) of
Section 103 of the General Corporation Law of the State of Delaware ("DGCL").
3. The inaccuracy or defect of said Restated Certificate of
Incorporation to be corrected is that paragraph 2 on page 1 of said Restated
Certificate of Incorporation is incorrect in that it recites that the Restated
Certificate of Incorporation further amended the Certificate of Incorporation
of the Corporation in accordance with Sections 242 and 245 of the DGCL when in
fact the Restated Certificate only restated and integrated the provisions of
the Certificate of Incorporation in accordance with Section 245 of the DGCL.
4. The Restated Certificate of Incorporation should be corrected so
that paragraph 2 on page 1 reads as follows:
"2. This Restated Certificate of Incorporation restates and
integrates the provisions of the Certificate of Incorporation
of this corporation and has been duly adopted in accordance with
Section 245 of the General Corporation Law of the State of
Delaware ("DGCL")."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Correction to the Restated Certificate of Incorporation to be executed this
28th day of February, 2001.
MAXTOR CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP., General Counsel ??
PAGE 1
State of Delaware
Office of the Secretary of State
________________________________
I, XXXXXXX XXXXX WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "MAXTOR CORPORATION", FILED IN THIS OFFICE ON THE THIRTEENTH
DAY OF NOVEMBER, A.D. 2000, AT 9 O'CLOCK A.M.
/s/ XXXXXXX XXXXX WINDSOR
-----------------------------------------
[SEAL] Xxxxxxx Xxxxx Windsor, Secretary of State
2097120 8100 AUTHENTICATION: 1071394
010173183 DATE: 00-00-00
XXXXX XX XXXXXXXX
XXXXXXXXX XX XXXXX
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/13/2000
001569154 - 2097120
RESTATED CERTIFICATE OF INCORPORATION
OF
MAXTOR CORPORATION
Maxtor Corporation, a corporation organized and existing under the laws of
the State of Delaware, hereby certifies that:
1. The name of the corporation is Maxtor Corporation. The corporation's
original certificate of incorporation was filed with the Secretary of State of
the State of Delaware on July 24, 1986.
2. This Restated Certificate of Incorporation restates, integrates and
amends the provisions of the Certificate of Incorporation of this corporation
and has been duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware ("DGCL").
3. The text of the Certificate of Incorporation of this corporation is
hereby restated to read in its entirety as follows:
FIRST: The name of the corporation is Maxtor Corporation (hereinafter
sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx
xx Xxxxxxxxxx, Xxxxxx of New Castle. The name of the registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the DGCL.
FOURTH:
(A) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is three hundred forty-five million
(345,000,000), consisting of:
(1) ninety-five million (95,000,000) shares of Preferred Stock, par
value one cent ($.01) per share (the "Preferred Stock"); and
(2) two hundred fifty million (250,000,000) shares of common stock,
par value one cent ($.01) per share.
The shares of Preferred Stock authorized by this Restated Certificate of
Incorporation may be issued from time to time in one or more series.
(B) The Preferred Stock may be divided into such number of series as the
Board of Directors may determine. The Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions
granted to and imposed upon any wholly unissued series of Preferred Stock, and
to fix the number of shares of any series of Preferred Stock and the
1
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions of
the Board of Directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any series subsequent to the
issue of shares of that series.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(A) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Restated
Certificate of Incorporation or the Bylaws of the Corporation, the directors
are hereby empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation.
(B) The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
(C) Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
(D) Special meetings of stockholders of the Corporation may be called
only by the Board of Directors, the Chairman of the Board of Directors or the
Chief Executive Officer.
SIXTH:
(A) The number of directors shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist any vacancies
in previously authorized directorships at the time any such resolution is
presented to the Board for adoption). The directors shall be divided into three
classes, as nearly equal in number as reasonably possible, with the term of
office of the first class to expire at the 1994 annual meeting of stockholders,
the term of office of the second class to expire at the 1995 annual meeting of
stockholders and the term of office of the third class to expire at the 1996
annual meeting of stockholders, provided that the term of office of directors
in office on the date of filing of this Restated Certificate of Incorporation
is unaffected by the filing of this Restated Certificate of Incorporation. At
each annual meeting of stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election. All directors shall hold office
until the expiration of the term for which elected, and until their respective
successors are elected, except in the case of the death, resignation, or
removal of any director.
(B) Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation or other cause (including removal from office
by a vote of the stockholders) may be filled only by a
2
majority vote of the directors then in office, though less than a quorum, or by
sole remaining director, and directors so chosen shall hold office for a term
expiring at the next annual meeting of stockholders at which the term of office
of the class to which they have been elected expires, and until their respective
successors are elected, except in the case of the death, resignation, or removal
of any director.
(C) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least a majority of the voting power of all of the
then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend
or repeal Bylaws of the Corporation. The stockholders shall also have power to
adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the stockholders shall require, in
addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this Restated Certificate of Incorporation,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
EIGHTH: A director of this Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a director,
then the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation Law,
as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any
provision contained in this Restated Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Restated Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any vote of the holders of any class or series of
the stock of this Corporation required by law or by this Restated Certificate of
Incorporation, the affirmative vote of the holders of at least 66-2/3% of the
then outstanding shares of the Capital Stock of the Corporation entitled to vote
generally in the election or directors, voting together as a single class, shall
be
3
required to amend or appeal this Article NINTH, Article FIFTH, Article SIXTH,
Article SEVENTH, or Article EIGHTH.
TENTH:
(A) In anticipation that:
(1) the Corporation will cease to be a majority-owned subsidiary of
Hyundai Electronics America ("HEA") but that HEA will remain, for some period
of time, a stockholder of the Corporation and along with certain other Hyundai
Affiliates (as defined in Article ELEVENTH) have continued contractual,
corporate and business relations with the Corporation;
(2) the Corporation, on the one hand, and any Hyundai Affiliates or
their customers or suppliers, on the other hand, may enter into contracts or
otherwise transact business with each other and that the Corporation may derive
benefits therefrom; and
(3) the Corporation may from time to time enter into contractual,
corporate or business relations with one or more of its directors, or one or
more corporations, partnership, associations or other organizations in which
one or more of its directors have a financial interest (collectively, "Related
Entities");
the provisions of this Article TENTH are set forth to regulate and guide
certain contractual relations and other business relations of the Corporation
as they may involve certain Hyundai Affiliates, Related Entities and their
respective officers and directors, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and stockholders in
connection therewith.
(B) The provisions of this Article TENTH are in addition to, and not in
limitation of, the provisions of the DGCL and the other provisions of this
Restated Certificate of Incorporation. Any contract or business relation which
does not comply with procedures set forth in this Article TENTH shall not by
reason thereof be deemed void or voidable or result in any breach of any
fiduciary duty to, or duty of loyalty to, or failure to act in good faith or in
the best interests of, the Corporation, or the derivation of any improper
personal benefit, but shall be governed by the remaining provisions of this
Restated Certificate of Incorporation, the Bylaws, the DGCL and other
applicable law.
(C) No contract, agreement, arrangement or transaction between the
Corporation and any Hyundai Affiliate or any Related Entity or between the
Corporation and one or more of the directors or officers of the Corporation, any
Hyundai Affiliate or any Related Entity, or any amendment, modification or
termination thereof, shall be void or voidable solely for the reason that any
Hyundai Affiliate, any Related Entity or any one or more of the officers or
directors of the Corporation, any Hyundai Affiliate or any Related Entity are
parties thereto, or solely because any such directors or officers are present at
or participate in the meeting of the Board of Directors or committee thereof
which authorizes such contract, agreement, arrangement, transaction, amendment,
modification or termination (each, a "Transaction") or solely because his or
their votes are counted for such purpose, and any Hyundai Affiliate, any Related
Entity and such directors and officers (i) shall have fully satisfied and
fulfilled any fiduciary duties they
4
may have to the Corporation and its stockholders with respect thereto, (ii)
shall not be liable to the Corporation or its stockholders for any breach of
fiduciary duty they may have by reason of the entering into, performance or
consummation of any such Transaction, (iii) shall be deemed to have acted in
good faith and in a manner such Persons reasonably believed to be in or not
opposed to the best interests of the Corporation, to the extent such standard
is applicable to such Persons' conduct, and (iv) shall be deemed not to have
breached any duties of loyalty to the Corporation or its stockholders they may
have and not to have derived an improper personal benefit therefrom, if:
(w) the material facts as to the Transaction are disclosed or are known
to the Board of Directors or the committee thereof that authorizes the
Transaction and the Board of Directors or such committee in good faith
authorizes or approves the Transaction by the affirmative vote of a majority of
the Disinterested Directors (as defined in Article ELEVENTH) on the Board of
Directors or such committee (even though the Disinterested Directors be less
than a quorum);
(x) the material facts as to the Transaction are disclosed or are known
to the holders of voting stock entitled to vote thereon, and the Transaction is
specifically approved in good faith by vote of the holders of a majority of the
then outstanding voting stock not owned by any Hyundai Affiliate or such
Related Entity, voting together as a single class, as the case may be; or
(y) such Transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a committee thereof
or the stockholders of the Corporation.
In addition, each Transaction authorized, approved or effected, as described in
(w) or (x) above, shall be deemed to be entirely fair to the Corporation and
its stockholders; provided, however, that if such authorization or approval is
not obtained, or such Transaction is not so effected, no presumption shall
arise that such Transaction is not fair to the Corporation and its stockholders.
(D) Directors of the Corporation who are also directors or officers of
any Hyundai Affiliate or any Related Entity may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes or approves any such Transaction and may vote at such meeting in
accordance with the provisions of paragraph (C) of this Article TENTH. Equity
securities with voting rights which are owned by any Hyundai Affiliate and any
Related Entities may be counted in determining the presence of a quorum at a
meeting of stockholders that authorizes or approves any such Transaction and may
be voted at such meeting in accordance with the provisions of paragraph (C) of
this Article TENTH.
(E) No Hyundai Affiliates shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty it may have by reason of the fact
that any Hyundai Affiliate takes any action or exercises any rights or gives or
withholds any consent in connection with any Transaction between any Hyundai
Affiliate and the Corporation. No vote cast or other action taken by any Person
(as defined in Article ELEVENTH) who is an officer, director or other
representative of any Hyundai Affiliate, which vote is cast or action is taken
by such Person in
5
his capacity as a director of the Corporation, shall constitute an action of, or
the exercise of a right by, or a consent of, any Hyundai Affiliate for the
purpose of any such Transaction.
(F) For purposes of this Article TENTH, any Transaction with any
corporation, partnership, joint venture, association or other entity in which
the Corporation Beneficially Owns (as defined in Article ELEVENTH), directly or
indirectly, fifty percent (50%) or more of the outstanding voting stock, voting
power or similar voting interests, or with any officer or director thereof,
shall be deemed to be a Transaction with the Corporation.
(G) Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary, and in addition to any vote of the Board of
Directors required by applicable law or this Restated Certificate of
Incorporation, the affirmative vote of the holders of more than sixty-six and
two-thirds percent (66-2/3%) of the voting power of the Corporation's equity
then outstanding, voting together as a single class; shall be required to alter,
amend or repeal in a manner adverse to the interests of any Hyundai Affiliate or
adopt any provision adverse to the interests of any Hyundai Affiliate and
inconsistent with, any provision of this Article TENTH. Neither the alteration,
amendment or repeal of this Article TENTH nor the adoption of any provision
inconsistent with this Article TENTH shall eliminate or reduce the effect of
this Article TENTH in respect of any matter occurring, or any cause of action,
suit or claim that, but for this Article TENTH, would accrue or arise, prior to
such alteration, amendment, repeal or adoption.
(H) Any Person purchasing or otherwise acquiring any interest in any
shares of stock of the Corporation shall be deemed to have notice of and to have
consented to the provisions of this Article TENTH.
ELEVENTH:
(A) In anticipation that:
(1) the Corporation will cease to be a majority-owned subsidiary
of HEA but that HEA will remain, for some period of time, a stockholder of the
Corporation;
(2) the Corporation and certain Hyundai Affiliates may engage in
the same or similar activities or lines of business and may have an interest in
the same or similar areas of corporate opportunities;
(3) there will be benefits to be derived by the Corporation
through its continued contractual, corporate and business relation with the
Hyundai Affiliates (including without limitation service of officers of certain
Hyundai Affiliates as directors of the Corporation);
(4) there will be benefits in providing guidelines for directors
and officers of the Hyundai Affiliates and of the Corporation with respect to
the allocation of corporate opportunities and other matters;
the provisions of this Article ELEVENTH are set forth to regulate, define and
guide the conduct of certain affairs of the Corporation as they may involve the
Hyundai Affiliates and their officers
6
and directors, and the powers, rights, duties and liabilities of the
Corporation and its officers, directors and stockholders in connection
therewith.
(B) Except as HEA may otherwise agree in writing, HEA shall have the
right to, and shall have no duty not to, (i) engage in the same or similar
business activities or lines of business as the Corporation, (ii) do business
with any potential or actual customer or supplier of the Corporation, or (iii)
employ or otherwise engage any officer or employee of the Corporation. Neither
HEA nor any officer or director thereof (except as provided in paragraph (C) of
this Article ELEVENTH) shall be liable to the Corporation or its stockholders
for breach of any fiduciary duty by reason of such activities (set forth in the
preceding sentence) of HEA or the participation therein of such Person. In the
event that HEA acquires knowledge of a potential transaction or matter that may
be a corporate opportunity for both HEA and the Corporation, HEA shall have no
duty to communicate or present such opportunity to the Corporation and shall not
be liable to the Corporation or its stockholders for breach of any fiduciary
duty as a stockholder of the Corporation by reason of the fact that HEA pursues
or acquires such corporate opportunity for itself, directs such opportunity to
another Person, or does not present such corporate opportunity to the
Corporation.
(C) If a director or officer of the Corporation who is also a director
or officer of a Hyundai Affiliate acquires knowledge of a potential transaction
or matter that may be a corporate opportunity for both the Corporation and any
Hyundai Affiliate such director or officer of the Corporation (i) shall have
fully satisfied and fulfilled the fiduciary duties of such director or officer
to the Corporation and its stockholders with respect to such corporate
opportunity, (ii) shall not be liable to the Corporation or its stockholders
for breach of any fiduciary duty by reason of the fact that any Hyundai
Affiliate pursues or acquires such corporate opportunity for itself or directs
such corporate opportunity to another Person (including, without limitation,
another Hyundai Affiliate) or does not communicate information regarding such
corporate opportunity to the Corporation, (iii) shall be deemed to have acted
in good faith and in a manner such Person reasonably believes to be in or not
opposed to the best interests of the Corporation, and (iv) shall be deemed not
to have breached his or her duty of loyalty to the Corporation or its
stockholders and not to have derived an improper benefit therefrom, if such
director or officer acts in a manner consistent with the following policy:
(x) a corporate opportunity offered to any Person who is a director
but not an officer of the Corporation and who is also an officer (whether or not
a director) of any Hyundai Affiliate shall belong to such Hyundai Affiliate,
unless such opportunity is expressly offered, in writing, to such Person
primarily in his or her capacity as a director of the Corporation, in which case
such opportunity shall belong to the Corporation;
(y) a corporate opportunity offered to any Person who is an officer
(whether or not a director) of the Corporation and who is also a director but
not an officer of any Hyundai Affiliate shall belong to the Corporation, unless
such opportunity is expressly offered, in writing, to such Person primarily in
his or her capacity as a director of a Hyundai Affiliate, in which case such
opportunity shall belong to such Hyundai Affiliate; and
(z) a corporate opportunity offered to any other Person who is
either (i) an officer of both the Corporation and a Hyundai Affiliate or (ii) a
director of both the Corporation
7
and a Hyundai Affiliate and not an officer of either entity, shall belong to
such Hyundai Affiliate or to the Corporation, as the case may be, if such
opportunity is expressly offered, in writing, to such Person primarily in his
or her capacity as an officer or director of the Corporation or of such Hyundai
Affiliate, respectively, otherwise, such opportunity shall belong to the
Corporation.
(D) Any corporate opportunity that belongs to a Hyundai Affiliate or to
the Corporation pursuant to the foregoing policy shall not be pursued by the
other, or directed by the other to another Person, unless and until the Hyundai
Affiliate or the Corporation, as the case may be, determines not to pursue the
opportunity. Notwithstanding the preceding sentence, if the party to whom the
corporate opportunity belongs does not within a reasonable period of time begin
to pursue, or thereafter continue to pursue, such opportunity diligently and in
good faith, the other party may then pursue such opportunity or direct it to
another Person.
(E) For purposes of this Restated Certificate of Incorporation, "Hyundai
Affiliates" shall mean Hyundai Electronics America, a California corporation
("HEA"), Hyundai Electronics Industries Co., Ltd. ("HEI"), all successors to HEA
or HEI by way of merger, consolidation or sale of all or substantially all its
assets, and all corporations, partnerships, joint ventures, associations and
other entities that directly or indirectly, through one or more intermediaries,
are controlled by HEA or HEI, other than the Corporation and all corporations,
partnerships, joint ventures, associations and other entities directly or
indirectly controlled by the Corporation. The term "control," as used in the
immediately preceding sentence, shall mean with respect to a corporation or
limited liability company the right to exercise, directly or indirectly, more
than fifty percent (50%) of the voting rights attributable to the controlled
corporation or limited liability company, and, with respect to any individual,
partnership, trust, other entity or association, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled entity.
(F) For purposes of this Article ELEVENTH, "corporate opportunities"
shall consist of business opportunities which (i) the Corporation is financially
able to undertake, (ii) are, from their nature, in the line or lines of the
Corporation's business and are of practical advantage to it, and (iii) are ones
in which the Corporation has an interest or reasonable expectancy. In addition,
"corporate opportunities" shall not include any transaction in which the
Corporation or any Hyundai Affiliate is permitted to participate pursuant to any
subsequent agreement between the Corporation and any Hyundai Affiliate approved
pursuant to Article TENTH hereof, it being acknowledged that the rights of the
Corporation under any such agreement shall be deemed to be contractual rights
and shall not be corporate opportunities of the Corporation for any purpose;
provided, however, that no presumption or implication as to corporate
opportunities relating to any transaction not explicitly covered by such an
agreement shall arise from the existence or absence of any such agreement.
(G) If any contract, agreement, arrangement or transaction between the
Corporation and any Hyundai Affiliate involves a corporate opportunity and is
approved in accordance with the procedures set forth in Article TENTH hereof, a
Hyundai Affiliate and its officers and directors shall also, for the purposes of
this Article ELEVENTH and the other provisions of this Restated Certificate of
Incorporation, be deemed to have fully satisfied and fulfilled any fiduciary
duties they may have to the Corporation and its stockholders. Any such contract,
agreement, arrangement or transaction involving a corporate opportunity not so
approved shall
8
not by reason thereof result in any such breach of any fiduciary duty, but
shall be governed by the other provisions of this Article ELEVENTH, this
Restated Certificate of Incorporation, the Bylaws, the DGCL and other
applicable law.
(H) For purposes of this Article ELEVENTH, the "Corporation" shall mean
the Corporation and all corporations, partnerships, joint ventures,
associations and other entities in which the Corporation Beneficially Owns,
directly or indirectly, thirty-three and one-third percent (33-1/3%) or more of
the outstanding voting stock, voting power or similar voting interests. For
purposes of this Article ELEVENTH and Article TENTH, (i) "Beneficial Owners,"
"Beneficially Own," "Beneficially Owned," "Beneficial Ownership," and words of
similar import shall have the meaning ascribed to such terms in Rule 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, or as successor rule, (ii) "Person" shall mean any individual, firm,
corporation or other entity; and (iii) "Disinterested Director" shall mean a
director of the Corporation who is not and has never been an officer, employee
or paid consultant of any Hyundai Affiliate or the Corporation.
(I) For purposes of this Article ELEVENTH, a director of the Corporation
who is Chairman of the Board of Directors of the Corporation or a committee
thereof shall not be deemed to be an officer of the Corporation by reason of
holding such position (regardless of whether such position is deemed an office
of the Corporation under the Bylaws of the Corporation), unless such Person is
a full-time employee of the Corporation.
(J) Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary and in addition to any vote of the Board of
Directors required by applicable law or this Certificate of Incorporation, the
affirmative vote of the holders of more than sixty-six and two-thirds percent
(66-2/3%) of the voting power of the Company's equity securities then
outstanding, voting together as a single class, shall be required to alter,
amend or repeal in a manner adverse to the interests of the Hyundai Affiliates,
or adopt any provision adverse to the interests of any Hyundai Affiliate and
inconsistent with, any provision of this Article ELEVENTH. Neither the
alteration, amendment or repeal of this Article ELEVENTH nor the adoption of any
provision inconsistent with this Article ELEVENTH shall eliminate or reduce the
effect of this Article ELEVENTH in respect of any matter occurring, or any cause
of action, suit or claim that, but for this Article ELEVENTH, would accrue or
arise, prior to such alteration, amendment, repeal or adoption.
(K) Any Person purchasing or otherwise acquiring any interest in any
shares of stock of the Corporation shall be deemed to have notice of and
consented to the provisions of this Article ELEVENTH.
9
IN WITNESS WHEREOF, the corporation has caused this Restated Certificate
of Incorporation to be signed by its President and Chief Executive Officer and
attested to by its Secretary this 10th day of December, 2000.
/s/ XXXXXXX X. XXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Attest:
/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx, Secretary
10
EXHIBIT B
BYLAWS
4
MAXTOR CORPORATION,
a Delaware Corporation
AMENDED AND RESTATED BYLAWS
ARTICLE 1
STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the stockholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the last annual meeting of stockholders, or if no such meeting
has been held, the date of incorporation.
Section 2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes prescribed in the notice of the meeting, may be called
only by (i) the Board of Directors, (ii) the Chairman of the Board or (iii) the
Chief Executive Officer of the Corporation, and shall be held at such place, on
such date, and at such time as they or he or she shall fix. Business transacted
at special meetings shall be confined to the purpose or purposes stated in the
notice of the meeting. In the event a special meeting is rightfully called by a
person other than the Board of Directors, the Board shall cooperate in causing
the meeting to be properly noticed and the matter as to which the meeting was
called to be properly brought before the meeting.
Section 3. Notice of Meetings. Written notice of the place, date, and
time of all meetings of the stockholders shall be given, not less than ten (10)
nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as required
from time to time by the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation, as amended from time to time). The Notices of
all meetings shall state the place, date and hour of the meeting. The notice of
a special meeting shall state, in addition, the purpose or purposes for which
the meeting is called. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the corporation.
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30)
days after the date for which the meeting was originally noticed, or if a new
record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the
1
adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
Section 4. Quorum. At any meeting of the stockholders, the holders of a
majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
Section 5. Conduct of Stockholders' Meeting. At every meeting of the
stockholders, the Chairman of the Board, if there is such an officer, or if not,
the person appointed by the Board of Directors, shall act as Chairman. The
Secretary of the corporation or a person designated by the Chairman of the
meeting shall act as Secretary of the meeting. Unless otherwise approved by the
Chairman of the meeting, attendance at the stockholders' meeting is restricted
to stockholders of record, persons authorized in accordance with Section 8 of
these By-laws to act by proxy, and officers of the corporation.
The Chairman of the meeting shall call the meeting to order, establish
the agenda, and conduct the business of the meeting in accordance therewith or,
at the Chairman's discretion, it may be conducted otherwise in accordance with
the wishes of the stockholders in attendance. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will vote
at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness
and good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in the By-laws to the contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in this Section 5. The
Chairman of a meeting shall, if the facts warrant, determine and declare to the
meeting that any proposed item of business was not brought before the meeting in
accordance with the provisions of this Section 5, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
2
Section 7. Notice of Stockholder Business. At any meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a meeting, business
must be (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (b) properly brought
before the meeting by or at the direction of the Board of Directors, or (c)
properly brought before an annual meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder proposal to be presented at an annual
meeting shall be received at the Corporation's principal executive offices not
less than 120 calendar days in advance of the date that the Corporation's (or
the Corporation's predecessor's) proxy statement was released to stockholders
in connection with the previous year's annual meeting of stockholders, except
that if no annual meeting was held in the previous year or the date of the
annual meeting has been advanced by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholders to be timely must be received not later than the close of
business on the tenth day following the day on which the public announcement of
the date of such meeting is first made.
A stockholder's notice to the Secretary of the Corporation shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual
meeting, (b) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business, (c) the class and number of shares of
the Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. For purposes of this
Section 7, "public announcement" shall mean disclosure in a press release
reported by the Dow Xxxxx News Service, Associated Press or comparable national
news service or in a document publicly filed by the Company with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Notwithstanding the
foregoing provisions of this Section 7, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 7. Nothing in
this Section 7 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
Section 8. Proxies and Voting. Each stockholder shall have one vote for
each share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
by law. Each stockholder of record entitled to vote at a meeting of
stockholders, may vote in person or may authorize any other person or persons to
vote or act for him by written proxy executed by the stockholder or his
authorized agent or by a transmission permitted by law and delivered to the
Secretary of the corporation. No stockholder may authorize more than one proxy
for his shares. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this Section may
be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile transmission or other reproduction shall be a
complete reproduction of the entire original writing or transmission.
3
Section 9. Action at Meeting. When a quorum is present at any meeting,
any election shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election, and all other matters shall be
determined by a majority of the votes cast affirmatively or negatively on the
matter (or if there are two or more classes of stock entitled to vote as
separate classes, then in the case of each such class, a majority of each such
class present or represented and voting affirmatively or negatively on the
matter), except when a different vote is required by express provision of law or
these By-laws.
All voting, including on the election of directors, but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting. The corporation may, and to the extent
required by law, shall in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
corporation may designate one or more persons as an alternate inspector to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting may, and
to the extent required by law, shall, appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability.
Section 9. Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 10. No Stockholders Action Without Meeting. Any action required
or permitted to be taken by the stockholders of the Corporation must be effected
at a duly called annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders.
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ARTICLE II
BOARD OF DIRECTORS
Section 1. Number and Term of Office.
AS IN EFFECT PRIOR TO THE EFFECTIVE TIME OF THE MERGER (AS SUCH TERMS ARE
DEFINED IN THE AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION (THE "AMENDED MERGER AGREEMENT"), DATED AS OF OCTOBER 3, 2001 BY
AND AMONG QUANTUM CORPORATION ("QUANTUM"), A DELAWARE CORPORATION, SPINCO
CORPORATION, A DELAWARE CORPORATION AND A WHOLLY-0WNED SUBSIDIARY OF QUANTUM,
HAWAII ACQUISITION CORPORATION, A DELAWARE CORPORATION AND WHOLLY-OWNED
SUBSIDIARY OF THE CORPORATION, AND THE CORPORATION):
The number of directors shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented
to the Board for adoption). The directors shall be divided into three classes,
as nearly equal in number as reasonably possible, with the term of office of the
first class to expire at the 1994 annual meeting of stockholders, the term of
office of the second class to expire at the 1995 annual meeting of stockholders
and the term of office of the third class to expire at the 1996 annual meeting
of stockholders, provided that the term of office of directors in office on the
date these Amended and Restated Bylaws are adopted is not affected by the
adoption of these Amended and Restated Bylaws. At each annual meeting of
stockholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
after their election. All directors shall hold office until the expiration of
the term for which elected and until their respective successor are elected,
except in the case of the death, resignation or removal of any director.
AS IN EFFECT AFTER THE EFFECTIVE TIME OF THE MERGER:
The number of directors shall be fixed from time to time exclusively by the
Board of Directors. Prior to the annual meeting of stockholders held in 2004,
the directors shall be divided into three classes, which need not be equal in
number, the size to be fixed exclusively by the Board of Directors. From and
after the annual meeting of stockholders to be held in 2004, the classes shall
be as nearly equal in number as reasonably possible as determined exclusively
by Board of Directors. All determinations by the Board of Directors under this
Section 1 shall be pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorship at the time any such resolution is presented
to the Board of Directors for adoption). Each director shall be elected to a
three-year term.
Section 2. Vacancies and Newly Created Directorships. Except as provided
in the Certificate of Incorporation of the Corporation, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause
5
may be filled only by a majority vote of the directors then in office, though
less than a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Section 3. Removal. Any or all of the directors may be removed from office
at any time, but only for cause and only by the affirmative vote of the holders
of at least a majority of all outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
Section 4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be
required. A regular meeting of the Board of Directors may be held without
notice immediately after and at the same place as the annual meeting of
stockholders.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President and Chief Executive
Officer, two or more directors, or by one director in the event there is only a
single director in office, and shall be held at such place, on such date, and
at such time as they or he or she shall fix. Notice of the place, date, and
time of each such special meeting shall be given each director by whom it is
not waived (i) by giving notice to such director in person or by telephone or
electronic voice message system at least 24 hours in advance of the meeting,
(ii) by sending a telegram, telecopy or telex, or delivering written notice by
hand, to his last known business or home address at least 24 hours in advance
of the meeting, or (iii) by mailing written notice to his last known business
or home address at least five (5) days in advance of the meeting. A notice or
waiver of notice of a meeting of the Board of Directors need not specify the
purposes of the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
Section 6. Quorum. At any meeting of the Board of Directors, a majority of
the total number of authorized directors shall constitute a quorum for all
purposes. In the event one or more of the directors shall be disqualified to
vote at any meeting, then the required quorum shall be reduced by one for each
such director so disqualified; provided, however, that in no case shall less
than one-third (1/3) of the number so fixed constitute a quorum. In the absence
of a quorum at any such meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be present. Interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or at a meeting of a committee which authorizes a
particular contract or transaction. At any meeting of the Board of Directors at
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law or
these By-Laws.
Section 7. Participation in Meetings by Conference Telephone. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee
6
by means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other and such
participation shall constitute presence in person at such meeting.
Section 8. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the Board
of Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing. Any such
written consents shall be filed with the minutes of proceedings of the Board or
committee.
Section 9. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 10. Nomination of Director Candidates: Subject to the rights of
holders of any class or series of Preferred Stock then outstanding, nominations
for the election of Directors may be made by the Board of Directors or a proxy
committee appointed by the Board of Directors or by any stockholder entitled to
vote in the election of Directors generally. However, any stockholder entitled
to vote in the election of Directors generally may nominate one or more persons
for election as Directors at a meeting only if timely notice of such
stockholder's intent to make such nomination or nominations has been given in
writing to the Secretary of the Corporation. To be timely, a stockholder
nomination for a director to be elected at an annual meeting shall be received
at the Corporation's principal execute offices not less than 120 calendar days
in advance of the date that the Corporation's proxy statement was released to
stockholders in connection with the previous year's annual meeting of
stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been advanced by more than 30 calendar days
from the date contemplated at the time of the previous year's proxy statement,
notice by the stockholders to be timely must be received not later than the
close of business on the tenth day following the day on which the public
announcement of the date of such meeting is first made. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote for the election of Directors on the date of such notice and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (e) the consent of each nominee to serve as a director
of the Corporation if so elected. For purposes of this Section 10, "public
announcement" shall mean disclosure in a press release reported by the Dow Xxxxx
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Company with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this
7
Section 10, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 10. Nothing in this Section 10 shall be
deemed to affect any rights of stockholders to request inclusion of proposals
in the Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
In the event that a person is validly designated as a nominee in
accordance with this Section 10 and shall thereafter become unable or unwilling
to stand for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may designate a
substitute nominee upon delivery, not fewer than five days prior to the date of
the meeting for the election of such nominee, of a written notice to the
Secretary setting forth such information regarding such substitute nominee as
would have been required to be delivered to the Secretary pursuant to this
Section 10 had such substitute nominee been initially proposed as a nominee.
Such notice shall include a signed consent to serve as a director of the
Corporation, if elected, of each such substitute nominee.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section 10,
such nomination shall be void; provided, however, that nothing in this Section
10 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the Preferred
Stock designation for any series of Preferred Stock.
ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors. The Board of Directors
may from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating,
if it desires, other directors as alternate members who may replace any absent
or disqualified member at any meeting of the committee. Any such committee, to
the extent provided in the resolution of the Board of Directors and subject to
the provisions of the General Corporation Law of the State of Delaware, shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Each such committee shall keep minutes and make such reports as the Board of
Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these
By-laws for the Board of Directors. Any committee so designated may exercise
the power and authority of the Board of Directors to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware General Corporation Law if the
resolution which designates the committee or a supplemental resolution of the
Board of Directors shall so provide. In the absence or
8
disqualification of any member of any committee and any alternate member in his
place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum,
may by unanimous vote appoint another member of the Board of Directors to act
at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the authorized members shall constitute a quorum unless the
committee shall consist of one or two members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 1. Generally. The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including, at the discretion
of the Board of Directors, a Chairman of the Board, and one or more Vice
Presidents and Assistant Secretaries. Except as otherwise provided in the
Certificate of Incorporation of the Corporation, officers shall be elected by
the Board of Directors, which shall consider that subject at its first meeting
after every annual meeting of stockholders. Each officer shall hold office
until his or her successor is elected and qualified or until his or her earlier
resignation or removal. The Chairman of the Board, if there be such an officer,
and the President shall each be members of the Board of Directors. Any number
of offices may be held by the same person.
Section 2. Chairman of the Board. The Board of Directors may appoint a
Chairman of the Board. If the Board of Directors appoints a Chairman of the
Board, he shall perform such duties and possess such powers as are assigned to
him by the Board of Directors. Unless otherwise provided by the Board of
Directors, he shall preside at all meetings of the stockholders, and, if he is
a director, at all meetings of the Board of Directors.
Section 3. President. The President shall be the chief executive officer
of the Corporation. Subject to the provisions of these Bylaws and to the
direction of the Board of Directors, he or she shall have the responsibility
for the general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers which are commonly
incident to the office of chief executive or which are delegated to him or her
by the Board of Directors. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation, other than the Chairman of
the Board, if there be such an officer.
9
Section 4. Vice President. Each Vice President shall have such powers
and duties as may be delegated to him or her by the Board of Directors or the
President. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have at the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
Section 5. Treasurer. The Treasurer shall perform such duties and shall
have such powers as may from time to time be assigned to him by the Board of
Directors or the President. In addition, the Treasurer shall perform such duties
and have such powers as are incident to the office of chief financial officer,
including without limitation, the duty and power to keep and be responsible for
all funds and securities of the corporation, to maintain the financial records
of the Corporation, to deposit funds of the corporation in depositories as
authorized, to disburse such funds as authorized, to make proper accounts of
such funds, and to render as required by the Board of Directors accounts of all
such transactions and of the financial condition of the corporation.
Any Assistant Treasurer shall perform such duties and possess such
powers as the Board of Directors, the President or the Treasurer may from time
to time prescribe. In the event of the absence, inability or refusal to act of
the Treasurer, the Assistant Treasurer (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.
Section 6. Secretary. The Secretary shall perform such duties and shall
have such powers as the Board of Directors or the President may from time to
time prescribe. In addition, the Secretary shall perform such duties and have
such powers as are incident to the office of the Secretary, including, without
limitation, the duty and power to give notices of all meetings of stockholders
and special meetings of the Board of Directors, to keep a record of the
proceedings of all meetings of stockholders and the Board of Directors, to
maintain a stock ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate seal and to
affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the President or the Secretary may from time
to time prescribe. In the event of the absence, inability or refusal to act of
the Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
10
Section 7. Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 8. Removal. Except as otherwise provided in the Certificate of
Incorporation of the Corporation, any officer of the Corporation may be removed
at any time, with or without cause, by the Board of Directors.
Section 9. Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or any
officer of the Corporation authorized by the President shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V
STOCK
Section 1. Certificates of Stock. Each stockholder shall be entitled to
a certificate, in such a form as may be prescribed by law, signed by, or in the
name of the Corporation by, the President or as Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by him or her. Any of or all the
signatures on the certificate may be facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
By-laws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
Section 2. Transfers of Stock. Except as otherwise established by rules
and regulations adopted by the Board of Directors, and subject to applicable
law, shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or authenticity of signature as the corporation or its transfer agent
may reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or the By-Laws, the Corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the Corporation in accordance with the requirements of these By-Laws.
11
Section 3. Record Date. The Board of Directors may fix in advance a date
as a record date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express consent (or dissent)
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights in
respect of any change, concession or exchange of stock, or for the purpose of
any other lawful action. Such record date shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which the meeting is held. The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior action by the Board
of Directors is necessary, shall be the day on which the first written consent
is expressed. The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 4. Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued
in its place pursuant to such regulations as the Board of Directors may
establish concerning proof of such loss, theft or destruction and concerning
the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion or registration
of certificates of stock shall be governed by such other regulations as the
Board of Directors may establish.
ARTICLE VI
NOTICES
Section 1. Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by prepaid
telegram, mailgram, telecopy or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice is received by such stockholder,
director, officer, employee or agent, or by any person accepting such notice on
behalf of such person, if hand delivered, or dispatched, if delivered through
the mails or by prepaid telegram, mailgram, telecopy or commercial courier
service, shall be the time of the giving of the notice.
12
Section 2. Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent
to the notice required to be given to such stockholder, director, officer,
employee or agent. Neither the business nor the purpose of any meeting need be
specified in such a waiver.
ARTICLE VII
MISCELLANEOUS
Section 1. Facsimile Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer
or by an Assistant Secretary or Assistant Treasurer.
Section 3. Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 5. Time Periods. In applying any provision of these Bylaws which
require that an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is
13
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall, to
the extent such person is an officer or director of the Corporation, and may
otherwise on the resolution of the Board of Directors, be indemnified and held
harmless by the Corporation to the fullest extent authorized by Delaware Law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment) against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
amounts paid or to be paid in settlement and amounts expended in seeking
indemnification granted to such person under applicable law, this by-law or any
agreement with the Corporation) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 2 of this Article VIII, the Corporation
shall indemnify any such person seeking indemnity in connection with an action,
suit or proceeding (or part thereof) initiated by such person only if such
action, suit or proceeding (or part thereof) was authorized by the board of
directors of the Corporation. Such right shall be a contract right and shall
include the right to be paid by the Corporation expenses incurred in defending
any such proceeding in advance of its final disposition; provided, however,
that, if the Delaware General Corporation Law then so requires, the payment of
such expenses incurred by a director of officer of the Corporation in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it should be determined ultimately
that such director or officer is not entitled to be indemnified under this
Section or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 is
not paid in full by the Corporation within twenty (20) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking, if any, has been
tendered to this Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such
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applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The rights conferred on any person
in Sections 1 and 2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. Indemnification Contracts. The Board of Directors is authorized
to enter into a contract with any director, officer, employee or agent of the
Corporation, or any person serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including employee benefit plans, providing
for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VIII.
Section 5. Insurance. The Corporation shall maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 6. Effect of Amendment. Any amendment, repeal or modification of
any provision of this Article VIII by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
ARTICLE IX
AMENDMENTS
Section 1. By the Board of Directors. Except as is otherwise set forth in
these By-laws, these By-laws may be altered, amended or repealed or new By-laws
may be adopted by the affirmative vote of a majority of the directors present
at any regular or special meeting of the Board of Directors at which a quorum
is present.
Section 2. By the Stockholders. Except as otherwise set forth in these
By-laws, these By-laws may be altered, amended or repealed or new By-laws may
be adopted by the affirmative By-laws may be altered, amended or repealed or
new By-laws may be adopted by the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the shares of the capital stock
of the corporation issued and outstanding and entitled to vote at any annual
meeting of stockholders, or at any special meeting of stockholders, provided
notice of such alteration, amendment, repeal or adoption of new By-laws shall
have been stated in the notice of such special meeting.
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CERTIFICATE OF SECRETARY
I, Xxxxx X. Xxxxxxx, hereby certify:
1. That I am the duly elected and acting Secretary of MAXTOR
CORPORATION, a Delaware corporation (the "Corporation"); and
2. That the foregoing Bylaws comprising sixteen (16) pages, constitute
the Amended and Restated Bylaws of the Corporation as duly adopted by the Board
of Directors at a meeting October 3, 2000.
IN WITNESS WHEREOF, I have hereunder subscribed my name this 12th day of
March, 2001.
/s/ XXXXX X. XXXXXXX
----------------------------------
Xxxxx X. Xxxxxxx, Secretary
16
EXHIBIT C
BOARD RESOLUTIONS
5
MAXTOR CORPORATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxxx Xxxxxxx, in my capacity as Assistant Secretary of Maxtor
Corporation, a Delaware corporation (the "CORPORATION"), and on behalf of the
Corporation, do hereby certify as set forth below:
1. I am the duly elected, qualified and acting Assistant Secretary of
the Corporation, and as such, I am authorized to execute and deliver this
certificate on behalf of the Corporation.
2. Attached hereto as EXHIBIT A is a true, complete and correct copy of
resolutions duly and validly adopted at a regular meeting of the board of
directors of the Corporation (the "BOARD") held on August 7, 2001, pursuant to
which the Board approved the execution and delivery of the Agreement and Plan of
Reorganization (the "AGREEMENT"), by and among the Corporation, Lime Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Corporation ("MERGER SUB"), MMC Technology, Inc., a California corporation, and
Hynix Semiconductor America, a California corporation, the performance by the
Corporation of all of the terms thereof, and the consummation of all of the
transactions contemplated thereby. Such resolutions have not been amended or
modified, are in full force and effect and are the only resolutions adopted by
the Board relating to the Agreement and the transactions contemplated thereby.
IN WITNESS WHEREOF, the undersigned has caused this Assistant Secretary's
Certificate to be executed as of the 15th day of August 2001.
MAXTOR CORPORATION
/s/ XXXXXXX XXXXXXX
----------------------------------------
Xxxxxxx Xxxxxxx
Assistant Secretary
EXHIBIT A
RESOLUTION OF THE
BOARD OF DIRECTORS OF
MAXTOR CORPORATION
AUGUST 7, 2001
I. AUTHORIZATION OF MERGER.
WHEREAS, the Board of Directors (the "Board") of Maxtor Corporation, a
Delaware corporation (the "Corporation") has determined that it is
desirable and in the best interests of the Corporation and its
stockholders, based on the recommendation of the Affiliated Transactions
Committee, to enter into the Agreement and Plan of Reorganization by and
between the Corporation, Lime Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Corporation ("Merger
Sub"), MMC Technology, Inc., a California corporation (the "Target"), and
Hynix Semiconductor America Inc., a California corporation, in
substantially the form attached hereto at Attachment 1 (the "Merger
Agreement"), providing for, among other things, the merger of the Target
with and into Merger Sub pursuant to which the Target shall be the
surviving corporation and become a wholly-owned subsidiary of the
Corporation (the "Merger").
WHEREAS, the Board has determined, based on the recommendation of the
Affiliated Transactions Committee, that is desirable and in the best
interests of the Corporation and its stockholders to consummate the
transactions contemplated by the Merger Agreement.
NOW, THEREFORE, BE IT RESOLVED, that, based on the recommendation of the
Affiliated Transactions Committee, the terms and conditions of the Merger
as set forth in the Merger Agreement are hereby authorized and approved,
with such changes and modifications as the officers of the Corporation
may consider necessary or appropriate.
RESOLVED FURTHER, that the form of the Merger Agreement, substantially in
the form attached hereto as Attachment 1, is hereby approved, and the
officers of the Corporation be, and each of them is, authorized and
directed to execute and deliver the Merger Agreement and such other
agreements as are provided as set forth in the exhibits to the Merger
Agreement, and such other instruments and documents, as may be necessary
or appropriate to consummate the transactions contemplated by the Merger,
together with such changes, modifications, additions or deletions as the
officer of the Corporation executing the same may deem necessary or
appropriate, such approval to be conclusively evidenced by the execution
and delivery thereof.
RESOLVED FURTHER, that the officers of the Corporation be, and each of
them is, authorized and directed to create and form a wholly owned
subsidiary of the Corporation under Delaware law named Lime Acquisition
Corporation.
RESOLVED FURTHER, that in furtherance of the Merger, the officers of the
Corporation be, and each of them is, authorized and directed to execute
and file with the Secretary of State of the State of California a
certificate of merger ("Certificate of Merger") pursuant to the California
General Corporation Law, such Certificate of Merger to be in the form
approved by the officer executing the same, and, if appropriate, such
other certificates, instruments, and documents as may be required to be
filed by the Corporation with the Secretary of State of California or any
other state, together with such changes, modifications, additions or
deletions as the officer of the Corporation executing the same may deem
necessary or appropriate, such approval to be conclusively evidenced by
the execution and filing thereof.
RESOLVED FURTHER, that all prior actions taken by any officer of the
Corporation with respect to the preparation, negotiation and execution of
the Merger Agreement and all agreements related thereto and otherwise to
effect the purposes and intent of the Merger Agreement, are hereby
ratified, confirmed and approved.
2. ENABLING RESOLUTIONS.
RESOLVED, that any officer of the Corporation is hereby authorized to
take such further actions as any of them shall deem necessary or
advisable in order to carry out and perform the purpose and intent of the
foregoing resolutions.
RESOLVED FURTHER, that any actions taken prior to the date of the
foregoing resolutions by any officer of the Corporation that are within
the authority conferred upon such officer, are hereby ratified, confirmed
and approved as the acts and deeds of the Corporation.
MAXTOR RECEIVABLES CORPORATION
UNANIMOUS WRITTEN CONSENT
OF THE SOLE SHAREHOLDER
IN LIEU OF SPECIAL MEETING
The undersigned, being the sole shareholder of all of the outstanding
shares of Maxtor Receivables Corporation, a California corporation (the
"Corporation"), in accordance with Section 603 of the California Corporations
Code and Section 2.12 of Article II of the Bylaws of the Corporation, hereby
consents to the taking of the following actions and adoption of the following
resolutions, and directs that this Consent be executed in lieu of and for the
purposes of and with the same effects as a special meeting of the sole
shareholder, and be filed with the Minutes of the meetings of the sole
shareholder by the Secretary of the Corporation:
AMENDMENT OF ARTICLES OF INCORPORATION
WHEREAS, the Board of Directors of this Corporation has adopted, by
unanimous written consent dated as of the date hereof (the "Consent"),
resolutions approving the amendment and restatement of the Articles of
Incorporation, a copy of such Consent which is attached hereto as EXHIBIT A and
made a part hereof;
NOW, THEREFORE, BE IT RESOLVED, that the undersigned shareholder does
hereby adopt, approve and consent to the aforementioned amendment and
restatement of the Articles of Incorporation, a copy of which is attached
hereto as EXHIBIT B and made a part hereof.
AMENDMENT OF BYLAWS
WHEREAS, the Board of Directors of this Corporation has adopted, by
unanimous written Consent dated as of the date hereof, resolutions approving
the amendment and restatement of the Bylaws, as amended, a copy of such Consent
which is attached hereto as EXHIBIT A and made a part hereof;
NOW, THEREFORE, BE IT RESOLVED, that the undersigned shareholder does
hereby adopt, approve and consent to the aforementioned amendment and
restatement of the Bylaws, as amended, a copy of which is attached hereto as
EXHIBIT C and made a part hereof.
1
GENERAL AUTHORITY
RESOLVED, that any and all actions heretofore taken by the officers of the
Corporation within the terms of any of the foregoing resolutions are hereby
ratified, approved and confirmed, and declared to be the valid and binding acts
and deeds of the Corporation; and
FURTHER RESOLVED, that the officers of this Corporation be and they hereby
are authorized, directed and empowered to do all such other acts and things
and to execute and deliver all such certificates or other documents and to take
such other action as they deem necessary or desirable to carry out the purposes
and intent of the above resolutions.
Dated as of November __, 2001
SHAREHOLDER:
----------------------------------------
MAXTOR CORPORATION
By: Xxxxx X. Xxxxxxx
Its: Vice President and General Counsel
2
EXHIBIT A
CONSENT OF THE BOARD OF DIRECTORS
(see attached)
1
EXHIBIT B
AMENDED AND RESTATED ARTICLES OF INCORPORATION
(see attached)
EXHIBIT C
AMENDED AND RESTATED BYLAWS
(see attached)
