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EXHIBIT 4.2
VOTING AGREEMENT
by and among
QUANTUM CORPORATION
and
[ ]
Dated as of October 3, 2000
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THIS VOTING AGREEMENTS, dated as of October 3, 2000 (this "Agreement"),
between Quantum Corporation, a Delaware corporation ("Parent"), and [_________],
a stockholder of the Company (the "Stockholder").
WHEREAS, as of the date hereof, the Stockholder is the registered owner of,
or has the power to vote, [___] shares of common stock of the Company ("Company
Common Stock");
WHEREAS, Parent and the Company propose to enter into an Agreement and Plan
of Merger and Reorganization dated as of even date herewith (the "Merger
Agreement," which term does not include any amendment thereto), which provides
for, among other things, the merger of a wholly owned subsidiary of the Company
with and into Spinco upon the terms and subject to the conditions set forth in
the Merger Agreement; capitalized terms used herein but not defined shall have
the meanings ascribed to them in the Merger Agreement;
WHEREAS, Parent has requested that the Stockholder agree, and, in order to
induce Parent to enter into the Merger Agreement, the Stockholder has agreed to
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. VOTING OF SHARES
1.1 Voting of Shares and Proxy.
At every meeting of the stockholders of the Company called, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company, the Stockholder shall cause the Shares (as defined
below) to be voted: (i) in favor of the adoption of the Merger Agreement and the
other transactions contemplated by the Merger Agreement; (ii) against any
proposal for any merger, consolidation, sale of assets, recapitalization or
other business combination involving the Company (other than the Merger) or any
other action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which would result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled; and (iii)
in favor of any other matter relating to consummation of the transactions that
is provided for by the Merger Agreement.
"Shares" shall mean: (i) all securities of the Company (including all
shares of Company Common Stock and all options, warrants and other rights to
acquire such securities) owned by the Stockholder as of the date of this
Agreement; and (ii) all additional securities of the Company (including all
shares of Company Common Stock and all additional options, warrants and other
rights to acquire such securities) of which the Stockholder acquires ownership
during the period from the date of this Agreement through the termination of
this Agreement. In the event of a stock dividend or distribution, or any change
in Company Common Stock by reason of any stock dividend or distribution, or any
change, in Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed
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to refer to and include the Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
Shares may be changed or exchanged or which are received in such transaction.
Nothing in this Agreement is intended to restrict or in any way affect action
taken or omitted by any individual affiliated with the Stockholder in such
person's capacity as a director or officer of the Company.
Concurrently with the execution of this Agreement, the Stockholder agrees
to deliver to Parent a proxy in the form attached hereto as Exhibit A (the
"Proxy"), which shall be irrevocable to the fullest extent permissible by law
but subject to termination as stated therein, with respect to the Shares.
The Stockholder hereby gives any consent or waivers that are reasonably
required for the consummation of the Merger under the terms of any agreements to
which the Stockholder is a party.
2. RESTRICTIONS ON TRANSFERS OF SHARES
2.1 Restrictions on Transfer of Shares Prior to the Effective Time.
(a) Prior to the Effective Time, the Stockholder hereby agrees
not to take any of the following actions, except in accordance with subsection
(b) of this Section 2.1 or as provided in the Merger Agreement:
(i) tender any of the Stockholder's Shares or any
securities convertible into or exchangeable or exercisable for the Stockholder's
Shares to any person;
(ii) sell, transfer, distribute, pledge, encumber, assign or
otherwise dispose of (or enter into any transaction or device that is designed
to, or could reasonably be expected to, result in the disposition by any person
at any time in the future of) any of the Stockholder's Shares or any securities
convertible into or exchangeable or exercisable for the Stockholder's Shares;
(iii) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of any of the Stockholder's Shares;
(iv) enforce or permit the execution of the provisions of
any redemption, share purchase or sale, recapitalization or other agreement with
the Company;
(v) deposit any of the Stockholder's Shares into a voting
trust or depositary facility or enter into a voting agreement or arrangement
with respect to any Shares or grant any proxy with respect thereto; or
(vi) enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of its Shares, any
securities convertible into or exchangeable or exercisable for shares of Company
Common Stock or any other capital stock of the Company or
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any interest in any of the foregoing with any person (any transaction referred
to in clause (i), (ii), (iii), (iv), (v) or (vi) is hereinafter referred to as a
"Transfer").
(b) Notwithstanding subsection (a) above, the Stockholder may
take an action described in subsection (a) if (i) Parent gives its prior written
consent to such action or (ii) the proposed transferee shall have executed a
counterpart of this Voting Agreement and the Proxy and shall have agreed to hold
such Shares or interest in such Shares subject to all of the terms and
provisions of this Agreement.
(c) No Stockholder shall request that the Company or its
transfer agent register the Transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Stockholder's
Shares, and each Stockholder hereby consents to the entry of stop transfer
instructions by the Company of any Transfer of such Stockholder's Shares, unless
such Transfer is made in compliance with this Agreement.
3. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS OF THE
STOCKHOLDER.
The Stockholder hereby represents and warrants and covenants to Parent as
follows:
3.1 Authorization. This Agreement has been duly executed and
delivered by or on behalf of the Stockholder and, assuming its due
authorization, execution and delivery by the other parties hereto, constitutes
the legal, valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, except as may be limited by the effect
of bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally and except as
enforcement thereof is subject to general principals of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
3.2 No Conflict. The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder
will not, (i) conflict with or violate the Certificate of Incorporation or
By-laws of the Stockholder, or other similar constituent documents, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which it or any of its properties is bound
or affected, or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to another party any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the property or assets of the Stockholder, including, without limitation, the
Shares, pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the
Stockholder is a party or by which the Stockholder or any of its properties is
bound or affected, except for any such breaches, defaults or other occurrences
that would not prevent or delay the performance by the Stockholder of its
obligations under this Agreement.
3.3 Title to Shares. The Stockholder is the registered or beneficial
owner of its Shares free and clear of any lien or encumbrance, proxy or voting
restriction other than pursuant to
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this Agreement. Such Shares are all the securities of the Company owned of
record or beneficially by the Stockholder on the date of this Agreement.
3.4 Reliance by Parent. The Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement.
3.5 Certain Actions. Prior to the termination of this Agreement, the
Stockholder agrees not to, directly or indirectly, take any other action that
would make any representation or warranty of the Stockholder contained herein
untrue or incorrect.
3.6 No Solicitation. The Stockholder will not, directly or
indirectly, and will instruct the Stockholder's agents, representatives,
affiliates, employees, officers and directors not to, directly or indirectly,
solicit, initiate or knowingly encourage (including by way of furnishing
nonpublic information), or take any other action knowingly to facilitate, any
inquires or the making of any proposal or offer (including, without limitation,
any proposal or offer to the stockholders of the Company) that constitutes, or
may reasonably be expected to lead to, any Company Acquisition Transaction, or
enter into or maintain or continue discussion or negotiate with any person or
entity in furtherance of such inquires or to obtain a Company Acquisition
Transaction, or agree to or endorse any Company Acquisition, or authorize or
permit any of the agents, representatives, affiliates (other than in the case of
a limited partnership, the limited partners thereof), employees, officers and
directors, to take any such action. The Stockholder shall notify Parent
immediately after receipt by the Stockholder or any of the Stockholder agents,
representatives, affiliates, employees, officers and directors, of any proposal
for, or inquiry respecting, and Company Acquisition Transaction or any request
for nonpublic information in connection with such a proposal or inquiry, or for
access to the properties, books or records of the Company by any person or
entity that informs or has informed the Company or the Stockholder that it is
considering making or has made such a proposal or inquiry. Such notice to Parent
shall indicate in reasonable detail the identity of the person making the
proposal or inquiry and the terms and conditions of such proposal or inquiry.
The Stockholder immediately shall cease and cause to be terminated all existing
discussions or negotiations with any parties conducted heretofore with respect
to a Company Acquisition Transaction.
3.7 Acknowledgment and Approval of the Merger Agreement. The
Stockholder hereby acknowledges and agrees that the Stockholder has received a
copy of the Merger Agreement, including all schedules and exhibits thereto, and
that the Stockholder has reviewed and understands the terms thereof.
3.8 Miscellaneous. Nothing contained in this Agreement shall be
deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any of the Stockholder's Shares. Except as
otherwise provided herein, all rights, ownership and economic benefits of and
relating to the Stockholder's Shares shall remain and belong to the Stockholder,
and Parent shall not have any authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
Company or exercise any power or authority to direct the Stockholder in the
voting of any of the Stockholder's Shares, except as otherwise provided herein,
or the performance of Stockholder's duties or responsibilities as a stockholder
of Company.
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4. GENERAL PROVISIONS
4.1 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by facsimile, by
registered or certified mail (postage prepaid, return receipt requested) or by
overnight courier service to the respective parties at the following addresses
(or at such other addresses as shall be specified by notice given in accordance
with this Section 4):
(a) if to Parent:
Quantum Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Stockholder,
[Address]
Facsimile No.: [Number]
(c) If to the Company,
Maxtor Corporation
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Friedenrich LLP
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▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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4.2 Headings. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
4.3 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
4.4 Entire Agreement; Amendment; Waiver. This Agreement and the Proxy
constitute the entire agreement of the parties and supersede all prior
agreements and undertakings, both written and oral, between the parties, or any
of them, with respect to the subject matter hereof and thereof. This Agreement
may not be amended or modified except in an instrument in writing signed by, or
on behalf of, the parties hereto. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
4.5 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither this
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by either of the parties by operation of law or otherwise
without the prior written consent of the other party.
4.6 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
4.7 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that province and without regard to any
applicable conflicts of law principles.
4.8 Submission to Jurisdiction; Waivers; Consent to Service of
Process. Each of Parent and the Stockholder irrevocably agrees that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by another party hereto or
its successors or assigns shall be brought and determined only in a United
States District Court sitting in the State of Delaware, or in the event (but
only in the event) that no such court has subject matter jurisdiction over such
action or proceeding, in the courts of the State of Delaware. Each of Parent and
the Stockholder hereby irrevocably submits with regard to any such
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action or proceeding for itself and in respect to its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts in the
event that any dispute arises out of this Agreement or any transaction
contemplated hereby. Any service of process to be made in such action or
proceeding may be made by delivery of process in accordance with the notice
provisions contained in Section 4.1. Each of Parent and the Stockholder hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (i) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason other than the failure to serve process
in accordance with this Section 4.8, (ii) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (iii) to the fullest extent permitted by applicable law that (A) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (B)
the venue of such suit, action or proceeding is improper and (C) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts.
4.9 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
4.10 Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy that may arise under this Agreement is likely to involve complicated
issues and, therefore, such party hereby irrevocably and unconditionally waives
any right that such party may have to a trial by jury in respect of any
litigation directly or indirectly arising out of or relating to this Agreement
or the transactions contemplated by this Agreement. Each party certifies and
acknowledges (i) that such party understands and has considered the implications
of this waiver, (ii) that such party makes this waiver voluntarily and (iii)
such party has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications in this Section 4.10.
4.11 Termination. This Agreement and the Proxy, and all obligations of
the parties hereunder and thereunder, shall terminate immediately, without any
further action being required, upon (i) any termination of the Merger Agreement
and (ii) the Effective Time, whichever first occurs.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
QUANTUM CORPORATION
By:
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Name:
Title:
STOCKHOLDER
By:
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Name:
Title:
[Signature Page to Voting Agreement]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Maxtor Corporation, a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law),
but subject to the termination provisions hereof, appoints Quantum Corporation,
a Delaware corporation ("Parent"), as the sole and exclusive attorney and proxy
of the undersigned, with full power of substitution and resubstitution, to vote
and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of the
Company that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "Shares") in
accordance with the terms of this Proxy. The Shares beneficially owned by the
undersigned Stockholder of the Company as of the date of this Proxy are listed
on the final page of this Proxy. Upon the undersigned's execution of this Proxy,
any and all prior proxies given by the undersigned with respect to any Shares
are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares.
This Proxy is irrevocable (to the fullest extent permitted by law), subject
to the termination provisions hereof, is coupled with an interest and is granted
pursuant to that certain Voting Agreement and Amendment to Stockholder Agreement
of even date herewith by and among Parent and the undersigned stockholder (the
"Voting Agreement"), and is granted in consideration of Parent entering into
that certain Agreement and Plan of Merger and Reorganization (the "Merger
Agreement"), between Parent and the Company. The Merger Agreement provides for
the acquisition of the Company by Parent pursuant to a merger of a wholly-owned
subsidiary of the Company with and into a wholly owned subsidiary of Parent (the
"Merger").
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned to act as the undersigned's attorney
and proxy to vote the Shares, and to exercise all voting, consent and similar
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents) at every annual,
special or adjourned meeting of stockholders of the Company and in every written
consent in lieu of such meeting: (i) in favor of the adoption of the Merger
Agreement and the other transactions contemplated by the Merger Agreement, (ii)
against any proposal for any merger, consolidation, sale of assets,
recapitalization or other business combination involving the Company (other than
the Merger) or any other action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or which would result in any of the
conditions to the Company's obligations under the Merger Agreement not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned Stockholder may vote the
Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law), subject
to the termination provisions hereof.
This Proxy, and all obligations of the undersigned hereunder, shall
terminate immediately, without any further action being required, upon (i) any
termination of the Merger Agreement and (ii) the Effective Time (as that term is
defined in the Merger Agreement), whichever first occurs.
Dated: October 3, 2000
STOCKHOLDER
By:
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Name:
Title:
Shares beneficially owned:
________________ shares of Company
Common Stock
[Signature Page to Irrevocable Proxy]
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MAXTOR CORPORATION
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
November 28, 2000
Maxtor Corporation
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Maxtor Corporation Board Member or Officer:
As you know, directors and officers of Maxtor Corporation and Quantum
Corporation have been asked to sign voting agreements dated as of October 3,
2000 (each, a "Voting Agreement") indicating that they will vote (i) in favor of
the adoption of the Agreement and Plan of Merger and Reorganization signed
effective October 3, 2000 (the "Merger Agreement") and the other transactions
contemplated by the Merger Agreement; (ii) against any proposal for any merger,
consolidation, sale of assets, recapitalization or other business combination
involving the Company (other than the merger contemplated by the Merger
Agreement) or any other action or obligation or agreement of the Company under
the Merger Agreement or which would result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled; and (iii)
in favor of any other matter relating to consummation of the transactions
described in the Merger Agreement.
Maxtor and Quantum currently intend to amend the Merger Agreement to correct a
few ambiguities and to change the structure of the merger so that the newly
formed subsidiary receiving the assets of Quantum's HDD business will merge
directly into Maxtor. To ensure that your vote will be on an informed basis, we
are requesting that you review the attached Amended and Restated Agreement and
Plan of Merger and Reorganization and that you sign this letter acknowledging
your consent to the amendment and restatement of the Merger Agreement, which
will also be dated as of October 3, 2000.
Please return the signed letter to ▇▇▇▇ ▇▇▇▇ at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; facsimile (▇▇▇) ▇▇▇-▇▇▇▇. Thank
you for your assistance.
Sincerely,
MAXTOR CORPORATION
By:
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Accepted and Agreed:
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