Exhibit 10.164
DEBT PAYMENT AND STOCK PURCHASE AGREEMENT
THIS DEBT PAYMENT AND STOCK PURCHASE AGREEMENT (the "Agreement") is made
as of this 12th day of December, 1997, by and between Maxtor Corporation, a
Delaware corporation ("Maxtor"), and Hyundai Electronics America, a
California corporation ("HEA").
I. RECITALS
1.1 Maxtor is indebted to HEA in the principal sum of Two Hundred Sixty
Five Million ($265,000,000) ("Total Principal"), and HEA is willing to
consider $200,000,000 ("Partial Principal") as paid in full as of September 1,
1997 ("Payment Date") in exchange for issuance to HEA of Maxtor stock;
1.2 HEA is willing to consider the Total Principal to have been reduced
by the Partial Principal amount as of the Payment Date and that interest on
such Partial Principal amount to have ceased accruing thereafter.
1.3 Maxtor is authorized to issue up to 95,000,000 shares of Series A
Preferred Stock, par value $.01 (the "Series A Preferred Stock"), having the
rights and preferences set forth in Maxtor's Amended and Restated Certificate
of Incorporation;
1.4 Prior to the stock issuance contemplated herein, HEA owns
58,208,955 shares of Series A Preferred Stock, constituting all of the shares
of Maxtor Corporation Series A Preferred Stock issued and outstanding;
1.5 Maxtor and HEA now desire to enter into a stock purchase
arrangement pursuant to which the Partial Principal amount shall be
considered to be paid in full as of the Payment Date in exchange for newly
issued shares of Maxtor's Series A Preferred Stock (the "New Shares"), as
described below.
NOW, THEREFORE, in consideration of the mutual agreements herein, the
parties hereto agree as follows:
II. AGREEMENT
2.1 PAYMENT OF PARTIAL PRINCIPAL AND DELIVERY OF SHARES. At the
Closing provided for in Section 2.2 hereof, Maxtor shall deliver to HEA a
certificate evidencing the New Shares.
1
2.2 CLOSING.
(a) Maxtor's delivery of the New Shares (the "Closing") shall
occur at the offices of HEA, at 10:00 a.m. on December 12, 1997, or such
other time and place as is mutually agreed upon (the "Closing Date").
(b) At the Closing:
(i) Maxtor will deliver to HEA as payment in full of the
Partial Principal amount a stock certificate representing 29,850,746 shares
of Maxtor's Series A Preferred Stock registered in the name of Hyundai
Electronics America; and
(ii) Upon delivery of the the New Shares, the Partial
Principal shall be considered to have been paid in full as of the Payment
Date.
2.3 MAXTOR'S REPRESENTATIONS AND WARRANTIES. Maxtor hereby represents
and warrants to HEA, regarding the issuance and sale of the New Shares
pursuant to this Agreement, that:
(a) Maxtor has all requisite power and authority, including that
required by law and Maxtor's Amended and Restated Certificate of
Incorporation and Bylaws, to issue and sell the New Shares; and
(b) The New Shares are free and clear of all liens, encumbrances,
charges and assessments, and are subject to no restrictions with respect to
transferability other than in compliance with applicable securities laws.
2.4 HEA'S REPRESENTATIONS AND WARRANTIES. HEA hereby represents and
warrants to Maxtor that HEA has all requisite legal power to enter into this
Agreement and to carry out and perform its obligations under the terms of
this Agreement.
2.5 MISCELLANEOUS.
(a) SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the heirs, executors, administrators and assigns of the
parties hereto.
(b) FURTHER DOCUMENTS. Each party hereto agrees to execute and
deliver any and all documents necessary to make effective the terms and
provisions of this Agreement.
(c) ENTIRE AGREEMENT. This Agreement contains the entire
under-standing of the parties and shall not be amended except by a written
instrument hereafter signed by each of the parties hereto.
2
(d) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original and all of which, together, shall
constitute one instrument.
(e) SEVERABILITY. If a court of competent jurisdiction holds any
portion of this Agreement to conflict with any federal, state or local law,
such portion is hereby declared null and void in such jurisdiction, and this
Agreement shall otherwise remain in full force and effect and be construed as
if such portion had never been included herein.
(f) WAIVER, DELAY. The waiver of a breach or default, or any
delay in exercising any rights under this Agreement shall not constitute a
waiver of any subsequent breach or default.
(g) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of California.
IN WITNESS WHEREOF, each of the parties hereto has executed and
delivered this Agreement as of the date first above written.
MAXTOR CORPORATION
By: /s/ Raja Venatesh
-----------------
Title: Corporate Treasurer
-------------------
HYUNDAI ELECTRONICS AMERICA
By: /s/ X.X. Xxxxxx
--------------------
Title: Vice President Finance &
Chief Financial Officer
3
------------------------------------------------------------------------------
NUMBER A Delaware Corporation SHARES
------------------------------------------------------------------------------
------------------------------------------------------------------------------
PS-A0002 Maxtor Corporation 29,850,746
------------------------------------------------------------------------------
Authorized Common Stock, 110,000,000 Shares
Authorized Preferred Stock, 95,000,000 Shares
Authorized Series A Preferred Stock, 95,000,000 Shares
This Certifies that Hyundai Electronics America is the record holder of
Twenty-Nine Million Eight Hundred Fifty Thousand Seven Hundred Forty-Six
Shares of Series A Preferred Stock of Maxtor Corporation transferable only on
the share register of the Corporation, in person or by duly authorized
Attorney, upon surrender of this Certificate properly endorsed or assigned.
This Certificate and the shares represented hereby are issued and shall be
held subject to all the provisions of the Articles of Incorporation and the
By-Laws of the Corporation and any amendments thereof, to all of which the
holder of this Certificate, by acceptance hereof, assents.
See reverse of this certificate for information on how to obtain a statement
of the rights, preferences, privileges and restrictions of each class or
series of shares.
Witness the Seal of the Corporation and the signatures of its duly authorized
officers this First day of December, A.D., 1997.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ----------------------------
Secretary President
For Value Received, _____________________hereby sell, assign and transfer unto
______________________________________________________________________________
________________________________________________________________________Shares
represented by the within Certificate, and do hereby irrevocably constitute
and appoint _________________________________________________Attorney
to transfer the shares on the share register of the within named Corporation
with full power of substitution in the premises.
In presence of ______________________________________________________________
_________________________________________________Dated_______________________
NOTICE: The Signature of this assignment must correspond with the name as
written upon the face of this Certificate, in every particular,
without alteration or enlargement, of any change whatever.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING
THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
STOCKHOLDERS MAY OBTAIN, UPON REQUEST AND WITHOUT CHARGE, A STATEMENT OF THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, GRANTED TO OR IMPOSED UPON EACH CLASS OR SERIES OF
SHARES AUTHORIZED TO BE ISSUED AND UPON THE HOLDERS THEREOF FROM THE
PRINCIPAL OFFICE OF THE CORPORATION.
