Exhibit 1.1
EXECUTION COPY
$400,000,000
SEAGATE TECHNOLOGY HDD HOLDINGS
8% SENIOR NOTES DUE 2009
PURCHASE AGREEMENT
May 3, 2002
May 3, 2002
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Seagate Technology HDD Holdings, an exempted limited liability company
organized under the laws of the Cayman Islands (the "Company"), proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"Initial Purchasers") $400,000,000 principal amount of its 8% Senior Notes due
2009 (the "Securities") to be issued pursuant to the provisions of an Indenture
to be dated May 13, 2002 (the "Indenture"), among the Company, Seagate
Technology Holdings, an exempted limited liability company organized under the
laws of the Cayman Islands (the "Parent Guarantor"), and U.S. Bank, N.A., as
Trustee (the "Trustee").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act and in offshore transactions in reliance
on Regulation S under the Securities Act ("Regulation S").
The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement to be dated May 13,
2002 among the Parent Guarantor, the Company and the Initial Purchasers (the
"Registration Rights Agreement").
In connection with the sale of the Securities, the Parent Guarantor and the
Company have prepared a preliminary offering memorandum (the "Preliminary
Memorandum") and a final offering memorandum (together with any amendments or
supplements thereto that are approved by you in accordance with Section 6(b)
hereof, the "Final Memorandum" and, with the Preliminary Memorandum, each a
"Memorandum"), in each case including a description of the terms of the
Securities, the terms of the offering and a description of the business of the
Parent Guarantor, the Company and the Company's subsidiaries (the
"Subsidiaries"). The Parent Guarantor and the Company hereby confirm that they
have authorized the use of the Preliminary Memorandum and the Final Memorandum
in connection with the offering and resale of the Securities by the Initial
Purchasers in accordance with Section 2.
1. Representations and Warranties. The Parent Guarantor and the Company
represent and warrant to, and agree with, you that:
(a) (i) The Preliminary Memorandum does not contain and the Final
Memorandum, as of its date and on the Closing Date (as defined in Section
4), will not contain any untrue statement of a material fact or omit to
state a material fact necessary to
2
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in either
Memorandum based upon information relating to any Initial Purchaser furnished to
the Company or its counsel in writing by such Initial Purchaser through you or
your counsel expressly for use therein, and (ii) each Memorandum, as of its date
and on the Closing Date, contained or contains all of the information that, if
requested by a prospective purchaser of the Securities, would be required to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(b) Each of the Parent Guarantor and the Company has been duly organized,
is validly existing as an exempted limited liability company in good standing
under the laws of the Cayman Islands, has the corporate power and authority to
own its property and to conduct its business as described in each Memorandum and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Parent Guarantor, the Company and the Subsidiaries, taken as a whole.
(c) Each Subsidiary has been duly organized, is validly existing as a
corporation, limited liability company or other similar entity in good standing
under the laws of the jurisdiction of its organization, has the corporate or
other power and authority to own its property and to conduct its business as
described in each Memorandum and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Parent Guarantor, the Company and the
Subsidiaries, taken as a whole; all of the issued shares of capital stock of
each Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares) are owned
directly by the Company, free and clear of all liens, encumbrances, equities or
claims.
(d) This Agreement and the Registration Rights Agreement have been duly
authorized, executed and delivered by the Parent Guarantor and the Company and,
assuming due execution and delivery by any Initial Purchaser seeking to enforce
this Agreement or the Registration Rights Agreement (as the case may be), will
constitute the valid and binding obligations of the Parent Guarantor and the
Company, enforceable by such Initial Purchaser against the Parent Guarantor and
the Company in accordance with its terms, subject to the effects of applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and equitable principles of
general applicability (whether considered in a proceeding in equity or at law)
and except to the extent that the indemnification and contribution provisions
hereof and under the Registration Rights Agreement may be unenforceable or may
be limited under applicable law.
3
(e) The Securities have been duly authorized and, when duly executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, will be valid and binding obligations of the Company, enforceable
against the Company and (with respect to the Guarantee contained in the
Indenture) the Parent Guarantor in accordance with their terms, subject to the
effects of applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
generally and equitable principles of general applicability (whether considered
in a proceeding in equity or at law), and will be entitled to the benefits of
the Indenture and the Registration Rights Agreement.
(f) The Indenture has been duly authorized and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and binding agreement of the Parent Guarantor and the
Company, enforceable against the Parent Guarantor and the Company in accordance
with its terms, subject to the effects of applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights generally and equitable principles of general applicability
(whether considered in a proceeding in equity or at law).
(g) The execution and delivery by the Parent Guarantor and the Company of,
and the performance by the Parent Guarantor and the Company of their respective
obligations under, this Agreement, the Indenture, the Registration Rights
Agreement and the Securities, as applicable, will not contravene any provision
of applicable law (except for such contraventions of applicable law that would
not reasonably be expected to have a material adverse effect on the Parent
Guarantor, the Company and the Subsidiaries, taken as a whole, or on the power
or ability of the Parent Guarantor and the Company to perform their respective
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Securities, as applicable), or the charter or by-laws of the
Parent Guarantor or the Company or any agreement or other instrument binding
upon the Parent Guarantor, the Company or any of the Subsidiaries that is
material to the Parent Guarantor, the Company and the Subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Parent Guarantor, the Company or any
Subsidiary (except for contraventions of any such judgment, order or decree that
would not reasonably be expected to have a material adverse effect on the Parent
Guarantor, the Company and the Subsidiaries, taken as a whole, or on the power
or ability of the Parent Guarantor and the Company to perform their respective
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Securities, as applicable), and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Parent Guarantor and the Company
of their respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities, as applicable, except such as
(i) have been obtained prior to the Closing Date, (ii) may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Securities and by Federal and state securities laws with respect
to the Parent Guarantor's and the Company's respective obligations under the
Registration Rights Agreement or (iii) the failure of which to obtain would not
reasonably be expected to have a material adverse effect on the power
4
or ability of the Parent Guarantor and the Company to perform their respective
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Securities, as applicable, including, but not limited to, the
issuance and sale of the Securities.
(h) Since the date as of which information is given in the Final
Memorandum, except as otherwise stated therein (i) there has been no material
adverse change or, to the knowledge of the Company or the Parent Guarantor, any
development involving a prospective material adverse change in the financial
condition or in the earnings, business affairs or management of the Parent
Guarantor, the Company and the Subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, (ii) none of the Parent Guarantor,
the Company or any of the Subsidiaries has incurred any material liability or
obligation, direct or contingent, other than in the ordinary course of business,
and (iii) none of the Parent Guarantor, the Company or any of the Subsidiaries
has entered into any material transaction other than in the ordinary course of
business.
(i) There are no legal or governmental actions, suits or proceedings
pending or, to the Parent Guarantor's or the Company's knowledge, threatened to
which the Parent Guarantor, the Company or any of the Subsidiaries is a party or
to which any of the properties of the Parent Guarantor, the Company or any of
the Subsidiaries is subject other than proceedings accurately described in all
material respects in the Final Memorandum and proceedings that would not have a
material adverse effect on the Parent Guarantor, the Company and the
Subsidiaries, taken as a whole, or on the power or ability of the Parent
Guarantor and the Company to perform their respective obligations under this
Agreement, the Indenture, the Registration Rights Agreement or the Securities,
as applicable.
(j) The financial statements (including the summary financial information
of both the Parent Guarantor and the Company and the selected historical
consolidated financial information of both the Parent Guarantor and the Company)
included in each Memorandum present fairly in all material respects the
financial position of the entities purported to be covered as of the dates shown
and their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis (except, in each case, that the summary and selected historical
consolidated financial information of the Company does not include the notes to
consolidated financial statements that would appear if full financial statements
had been presented for the Company and that interim periods of the Company and
its predecessor have been combined therein into full year and nine-month
periods); and the unaudited pro forma consolidated financial statements comply
as to form in all material respects with the applicable requirements of Rule
11-02 of Regulation S-X.
(k) The Parent Guarantor, the Company and the Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with
5
all terms and conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Parent Guarantor, the Company and the
Subsidiaries, taken as a whole.
(l) Except as disclosed in the Final Memorandum, there are no costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
material adverse effect on the Parent Guarantor, the Company and the
Subsidiaries, taken as a whole.
(m) Each of the Parent Guarantor and the Company is not, and after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum will not be, required to
register as an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(n) Neither the Parent Guarantor, the Company nor any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") of the
Parent Guarantor or the Company has directly, or through any agent, (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be integrated
with the sale of the Securities in a manner that would require the registration
under the Securities Act of the Securities or (ii) offered, solicited offers to
buy or sold the Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act, except that no representation, warranty or agreement is
made by the Parent Guarantor or the Company in this paragraph with respect to
the activities of the Initial Purchasers.
(o) None of the Parent Guarantor, the Company, any of their respective
Affiliates or any person acting on its or their behalf has engaged or will
engage in any directed selling efforts (within the meaning of Regulation S) with
respect to the Securities and the Parent Guarantor, the Company and their
respective Affiliates and any person acting on its or their behalf have complied
and will comply with the offering restrictions requirement of Regulation S,
except that no representation, warranty or agreement is made by the Parent
Guarantor or the Company in this paragraph with respect to the activities of the
Initial Purchasers.
(p) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 7 and their compliance with the
agreements set forth herein, it is not necessary in connection with the offer,
sale and delivery of the Securities to the Initial Purchasers in the manner
contemplated by this Agreement and the Memoranda to register the Securities
under the Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
6
(q) The Securities satisfy the eligibility requirements set forth in Rule
144A(d)(3) under the Securities Act.
(r) Subsequent to the respective dates as of which information is given in
the Final Memorandum, (i) neither the Parent Guarantor nor the Company has
purchased any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends and (ii) there has not been any material change
in the capital stock or long-term debt of the Parent Guarantor, the Company and
the Subsidiaries, except in each case as described in the Final Memorandum.
(s) The Parent Guarantor, the Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business
of the Parent Guarantor, the Company and the Subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
Final Memorandum, such as do not materially interfere with the use made and
proposed to be made of such property by the Parent Guarantor, the Company and
the Subsidiaries or such as would not reasonably be expected to have a material
adverse effect on the Parent Guarantor, the Company and the Subsidiaries, taken
as a whole; and any real property and buildings held under lease by the Parent
Guarantor, the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Parent Guarantor, the Company and the Subsidiaries, in each
case except as described in the Final Memorandum.
(t) Except as disclosed in the Final Memorandum, the Parent Guarantor, the
Company and the Subsidiaries own or possess, or can acquire on reasonable terms,
all material patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names and other intellectual property currently employed by them in
connection with the business now operated by them, and none of the Parent
Guarantor, the Company nor, to the knowledge of the Parent Guarantor and the
Company, any of the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a material adverse
affect on the Parent Guarantor, the Company and the Subsidiaries, taken as a
whole.
(u) No material labor dispute with the employees of the Parent Guarantor,
the Company or any of the Subsidiaries exists, except as described in each
Memorandum, or, to the knowledge of the Parent Guarantor or the Company, is
imminent.
(v) The Parent Guarantor, the Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; none of
7
the Parent Guarantor, the Company or any of the Subsidiaries has been
refused any insurance coverage sought or applied for, other than as
would not reasonably be expected to have a material adverse effect on
the Parent Guarantor, the Company and the Subsidiaries, taken as a
whole; and none of the Parent Guarantor, the Company or any of the
Subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the Parent Guarantor, the Company and the
Subsidiaries, taken as a whole, except as described in the Final
Memorandum.
(w) The Parent Guarantor, the Company and the Subsidiaries possess
all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses except such as the failure of which to
obtain would not reasonably be expected to have a material adverse
effect on the Parent Guarantor, the Company and the Subsidiaries, taken
as a whole, and none of the Parent Guarantor, the Company nor, to the
knowledge of the Parent Guarantor and the Company, any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the Parent Guarantor, the Company and the Subsidiaries, taken
as a whole, except as described in each Memorandum.
(x) The Parent Guarantor, the Company and each of the Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only
in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(y) None of the Parent Guarantor, the Company or any of the
Subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the
Parent Guarantor, the Company or any of the Subsidiaries or the Initial
Purchasers for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Securities.
(z) On the Closing Date, all of the material assets used in the
rigid disc drive operations of New SAC, an exempted liability company
organized under the laws of the Cayman Islands that is the indirect
parent company of the Parent Guarantor and the Company ("New SAC"), and
its subsidiaries will be held by the Company and the Subsidiaries.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties
8
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company the respective principal
amount of Securities set forth in Schedule I hereto opposite its name at a
purchase price of 98.25% of the principal amount thereof (the "Purchase Price").
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on May 13, 2002, or at
such other time on the same or such other date as shall be mutually agreed upon
by the Company and you. The time and date of such payment are hereinafter
referred to as the "Closing Date".
The Securities shall be in definitive form or global form, as specified
by you, and registered in such names and in such denominations as you shall
request in writing not later than one full business day prior to the Closing
Date. The Securities shall be delivered to you on the Closing Date for the
respective accounts of the several Initial Purchasers, with any transfer taxes
payable in connection with the transfer of the Securities to the Initial
Purchasers duly paid, against payment of the Purchase Price therefor plus
accrued interest, if any, to the date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded the Parent Guarantor or the Company or any of the Parent
Guarantor's or the Company's securities by any "nationally
recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the financial
condition, earnings, business or operations of the Parent
Guarantor, the Company and the Subsidiaries, taken as a whole,
from that set forth in the Final Memorandum provided to
prospective purchasers of the Securities that, in your reasonable
judgment, is material and adverse and
9
that makes it, in your reasonable judgment, impracticable to
market the Securities on the terms and in the manner contemplated
in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive officer of
each of the Parent Guarantor and the Company, to the effect set forth in
Section 5(a)(i) and to the effect that, to such officer's knowledge after
due inquiry, the representations and warranties of the Parent Guarantor and
the Company contained in this Agreement are true and correct in all
material respects as of the Closing Date and that the Parent Guarantor and
the Company have complied with all of the agreements and satisfied all of
the conditions on their respective parts to be performed or satisfied
hereunder in all material respects on or before the Closing Date.
(c) The Initial Purchasers shall have received on the Closing Date
an opinion of Simpson Thacher & Bartlett, outside U.S. counsel for the
Company, Walkers, outside Cayman Islands counsel for the Company, and
William Hudson, General Counsel of the Company, in each case dated the
Closing Date, to the effect set forth in Exhibits A, B and C, respectively.
Such opinions shall be rendered to the Initial Purchasers at the request of
the Company.
(d) The Initial Purchasers shall have received on the Closing Date
an opinion of Cravath, Swaine & Moore, counsel for the Initial Purchasers,
dated the Closing Date, to the effect set forth in Exhibit D.
(e) The Initial Purchasers shall have received from the Company on
each of the date hereof and the Closing Date a letter addressed to the
Initial Purchasers, dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to the Initial Purchasers, from
Ernst & Young LLP, independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Final Memorandum; provided
that the letter delivered on the Closing Date shall use a "cut-off date"
not earlier than May 2, 2002.
(f) The Initial Purchasers shall have received a counterpart of
the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of the Parent Guarantor and the
Company.
(g) The Indenture shall have been duly executed and delivered by
the Parent Guarantor, the Company and the Trustee, and the Securities shall
have been duly executed and delivered by the Company and duly authenticated
by the Trustee.
(h) The Securities shall have been approved by the National
Association of Securities Dealers, Inc. ("NASD") for trading in the PORTAL
Market.
(i) Seagate Technology International, an exempted limited
liability company organized under the laws of the Cayman Islands that is a
direct wholly owned subsidiary of
10
the Company ("STI"), shall have irrevocably accepted for purchase not less
than a majority in principal amount of its outstanding 12-1/2% Senior
Subordinated Notes due 2007 in the debt tender offer commenced by STI on
April 15, 2002.
(j) STI and Seagate Technology (U.S.) Holdings, Inc., a Delaware
corporation that is a direct wholly owned subsidiary of the Company
("STUSH"), shall have repaid in full all amounts outstanding under the
credit agreement dated as of November 22, 2000, among STI, STUSH, New SAC
and the lenders and agents party thereto, and such credit agreement, all
other documentation evidencing any indebtedness under such credit agreement
and any related guarantee and collateral documents shall have been
terminated.
(k) The Company and STUSH shall have received not less than
$350,000,000 in aggregate in gross proceeds from term loan borrowings under
a credit agreement to be entered into as of the Closing Date among the
Company and STUSH, each as a borrower, JPMorgan Chase Bank, as
administrative agent, J.P. Morgan Securities Inc. and Morgan Stanley Senior
Funding, Inc., as joint book managers and co-lead arrangers, Morgan Stanley
Senior Funding, Inc., as syndication agent, and Citicorp USA, Inc., Credit
Suisse First Boston and Merrill Lynch Capital Corporation, as
co-documentation agents.
6. Covenants of the Parent Guarantor and the Company. In further
consideration of the agreements of the Initial Purchasers contained in this
Agreement, the Parent Guarantor and the Company each covenant with each Initial
Purchaser as follows:
(a) To furnish to you in New York City, without charge, as
promptly as practicable following the date of this Agreement and during the
period mentioned in Section 6(c), as many copies of the Final Memorandum
and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Final Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and not
to use any such proposed amendment or supplement to which you reasonably
object.
(c) If, during such period after the date hereof and prior to the
date on which all of the Securities shall have been sold by the Initial
Purchasers, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Final Memorandum in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if, in the opinion of counsel for the
Initial Purchasers, it is necessary to amend or supplement the Final
Memorandum to comply with applicable law, forthwith to prepare and furnish,
at its own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances under which they were made, be misleading or so that the
Final Memorandum, as amended or supplemented, will comply with applicable
law; to advise the Initial Purchasers promptly of any order preventing or
suspending the use of the Preliminary Memorandum or the Final Memorandum,
of any suspension of the qualification of the Securities for offering or
sale in any jurisdiction and of the initiation or
11
threatening of any proceeding for any such purpose; and to use their
reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Memorandum or the Final
Memorandum or suspending any such qualification and, if any such suspension
is issued, to use their reasonable best efforts to obtain the lifting
thereof at the earliest possible time.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Parent Guarantor's and the Company's counsel and the Parent Guarantor's and
the Company's accountants in connection with the issuance and sale of the
Securities and all other fees or expenses in connection with the
preparation of each Memorandum and all amendments and supplements thereto,
including all printing costs associated therewith, and the delivering of
copies thereof to the Initial Purchasers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and delivery
of the Securities to the Initial Purchasers, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or legal investment memorandum in connection with the offer and
sale of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale
under state securities laws as provided in Section 6(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Initial Purchasers in connection with such qualification and in connection
with the Blue Sky or legal investment memorandum, provided that such fees
and disbursement shall not exceed $10,000 in the aggregate, (iv) any fees
charged by rating agencies for the rating of the Securities, (v) the fees
and expenses, if any, incurred in connection with the admission of the
Securities for trading in PORTAL or any appropriate market system, (vi) the
costs and charges of the Trustee and any transfer agent, registrar or
depositary, (vii) the cost of the preparation, issuance and delivery of the
Securities, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Parent
Guarantor and the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show with the prior written
approval of the Company, and (ix) all other costs and expenses incident to
the performance of the obligations of the Parent Guarantor and the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 8,
and the last paragraph of Section 10, the Initial Purchasers will pay all
of their costs and expenses, including fees and disbursements of their
counsel, road show expenses (including travel and lodging), transfer taxes
payable on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
12
(f) Not to, and not to permit its Affiliates to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated with
the sale of the Securities in a manner which would require the registration
under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities"
within the meaning of the Securities Act, to make available, upon request,
to any seller of such Securities the information specified in Rule
144A(d)(4) under the Securities Act, unless the Parent Guarantor or the
Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use its reasonable best efforts to
permit the Securities to be designated PORTAL securities in accordance with
the rules and regulations adopted by the NASD relating to trading in the
PORTAL Market.
(j) Not to, and not to permit its Affiliates or any person acting
on its or their behalf (other than the Initial Purchasers) to, engage in
any directed selling efforts (as that term is defined in Regulation S) with
respect to the Securities, and to comply, and to direct its Affiliates and
each person acting on its or their behalf (other than the Initial
Purchasers) to comply, with the offering restrictions requirement of
Regulation S.
(k) During the period of two years after the Closing Date, not to,
and not to permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Securities which constitute
"restricted securities" under Rule 144 that have been reacquired by any of
them, except for Securities purchased by the Company or any of its
affiliates and resold in a transaction registered under the Securities Act.
(l) Not to take any action that would cause Regulation M under the
Exchange Act to apply in connection with the distribution of the Securities
contemplated hereby.
(m) To apply the net proceeds of the sale of Securities as set
forth in the Final Memorandum under "Use of Proceeds".
(n) For a period of 90 days from the date of the Final Memorandum
and except as contemplated by the Registration Rights Agreement, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any debt securities
issued or guaranteed by the Parent Guarantor, the Company or any of the
Subsidiaries (other than the Securities) without your prior written
consent.
(o) In connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers.
13
7. Offering of Securities; Restrictions on Transfer.
(a) Each Initial Purchaser, severally and not jointly, represents
and warrants that such Initial Purchaser is a qualified institutional buyer
as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial
Purchaser, severally and not jointly, agrees with the Company that (i) it
will not solicit offers for, or offer or sell, such Securities by any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and (ii)
it will solicit offers for such Securities only from, and will offer such
Securities only to, persons that it reasonably believes to be (A) in the
case of offers inside the United States, QIBs and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers", which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for
foreign beneficial owners (other than an estate or trust)) in reliance upon
Regulation S under the Securities Act that, in each case, in purchasing
such Securities are deemed to have represented and agreed as provided in
the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United
States that:
(i) such Initial Purchaser understands that no action has
been or will be taken in any jurisdiction by the Company that
would permit a public offering of the Securities, or possession or
distribution of either Memorandum or any other offering or
publicity material relating to the Securities, in any country or
jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable
laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or
distributes either Memorandum or any such other material, in all
cases at its own expense;
(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons
except in accordance with Rule 144A or Regulation S under the
Securities Act or pursuant to another exemption from the
registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and
will offer and sell the Securities (A) as part of their
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date,
only in accordance with Rule 903 of Regulation S or as otherwise
permitted in Section 7(a); accordingly, neither such Initial
Purchaser, its Affiliates nor any persons acting on its or their
behalf have engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the
Securities,
14
and any such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and,
prior to the date six months after the Closing Date, will not
offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (B)
has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (the "FSMA") with respect
to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom, and (C) will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) received by it in connection with the
issue or sale of the Securities in circumstances in which section
21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser understands that the Securities
have not been and will not be registered under the Securities and
Exchange Law of Japan, and represents that it has not offered or
sold, and agrees not to offer or sell, directly or indirectly, any
Securities in Japan or for the account of any resident thereof
except pursuant to any exemption from the registration
requirements of the Securities and Exchange Law of Japan and
otherwise in compliance with applicable provisions of Japanese
law; and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act")
and may not be offered and sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the
offering and the date of original issuance of the
Securities, except in either case in accordance with
Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meaning given to
them by Regulation S".
Terms used in this Section 7(b) have the meanings given to them by
Regulation S.
(c) Each Initial Purchaser has not and, severally and not jointly,
agrees that it will not enter into any contractual arrangement with any
distributor with respect to the
15
distribution of the Securities, except with its affiliates or with the
prior written consent of the Company.
(d) Each Initial Purchaser, severally and not jointly, agrees
that, prior to or simultaneously with the confirmation of sale by such
Initial Purchaser to any purchaser of any of the Securities purchased by
such Initial Purchaser from the Company pursuant hereto, such Initial
Purchaser shall furnish to that purchaser a copy of the Final Memorandum
(and any amendment or supplement thereto that the Company shall have
furnished to such Initial Purchaser prior to the date of such confirmation
of sale). In addition to the foregoing, each Initial Purchaser acknowledges
and agrees that the Company and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 5(c) and (d),
counsel for the Company and for the Initial Purchasers, respectively, may
rely upon the accuracy of the representations and warranties of the Initial
Purchasers and their compliance with their agreements contained in this
Section 7, and each Initial Purchaser hereby consents to such reliance.
8. Indemnity and Contribution.
(a) The Parent Guarantor and the Company shall jointly and
severally indemnify and hold harmless each Initial Purchaser and each
person, if any, who controls any Initial Purchaser within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in either Memorandum (as amended or supplemented if
the Parent Guarantor or the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact necessary to make the statements therein in
the light of the circumstances under which they were made not misleading;
provided, insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Initial Purchaser furnished
to the Parent Guarantor or the Company in writing by such Initial Purchaser
through you or your counsel expressly for use therein; provided further,
that, with respect to any such untrue statement in or omission from the
Preliminary Memorandum, the indemnity agreement contained in this Section
8(a) shall not inure to the benefit of any such Initial Purchaser that sold
the Securities to the person asserting any such loss, claim, damage,
liability or action to the extent that such sale was an initial resale by
such Initial Purchaser and any such loss, claim, damage, liability or
action of or with respect to such Initial Purchaser results from the fact
that both (A) a copy of the Final Memorandum was not sent or given to such
person at or prior to the written confirmation of the sale of such
Securities to such person and (B) the untrue statement in or omission from
the Preliminary Memorandum was corrected in the Final Memorandum, as the
same may be amended, unless, in either case, such failure to deliver the
Final Memorandum was a result of non-compliance of the Parent Guarantor or
the Company with Section 6(a).
16
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless each of the Parent Guarantor and the Company,
its directors, its officers and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Parent Guarantor and the Company to such Initial
Purchaser, but only with reference to information relating to such Initial
Purchaser furnished to the Parent Guarantor or the Company in writing by
such Initial Purchaser through you or your counsel expressly for use in
either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to an actual or
potential conflict (based upon advise of outside counsel to the indemnified
party). It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed promptly after they are billed. Such firm
shall be designated in writing by Morgan Stanley & Co. Incorporated, in the
case of parties indemnified pursuant to Section 8(a), and by the Company,
in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
17
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Parent
Guarantor or the Company on the one hand and the Initial Purchasers on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the
Parent Guarantor or the Company on the one hand and of the Initial
Purchasers on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received
by the Parent Guarantor or the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the
net proceeds from the offering of the Securities (before deducting
expenses) received by the Parent Guarantor or the Company and the total
discounts and commissions received by the Initial Purchasers, bear to the
aggregate offering price of the Securities. The relative fault of the
Parent Guarantor or the Company on the one hand and of the Initial
Purchasers on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Parent Guarantor or the Company, on the one
hand, or by the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 8 are several
in proportion to the respective principal amount of Securities they have
purchased hereunder, and not joint.
(e) The Parent Guarantor, the Company and the Initial Purchasers
agree that it would not be just or equitable if contribution pursuant to
this Section 8 were determined by pro rata allocation (even if the Initial
Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities
resold by it in the initial placement of such Securities were offered to
investors exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
18
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Parent Guarantor and the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser or any person controlling any Initial Purchaser or any affiliate
of any Initial Purchaser or by or on behalf of the Parent Guarantor, the
Company, their respective officers or directors or any person controlling
the Parent Guarantor or the Company and (iii) acceptance of and payment for
any of the Securities.
9. Termination. The Initial Purchasers may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your reasonable
judgment, is material and adverse and which, singly or together with any other
event specified in this clause (v), makes it, in your reasonable judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Securities on the terms and in the manner contemplated in the Final Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers shall
fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of Securities to be purchased on such date, the other Initial Purchasers shall
be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that any
Initial Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date,
19
and arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Parent Guarantor and the Company shall be unable to perform their
respective obligations under this Agreement, the Parent Guarantor and the
Company will reimburse the Initial Purchasers or such Initial Purchasers as have
so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Initial Purchasers in connection with this
Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Consent to Jurisdiction; Appointment of Agent for Service of
Process; Judgment Currency.
(a) The Parent Guarantor and the Company each agree that any suit,
action or proceeding against the Parent Guarantor or the Company
arising out of or relating to this Agreement may be instituted in any
state or U.S. Federal court in the Borough of Manhattan, The City of
New York, New York, and any appellate court from any thereof, and each
of them irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding. The Parent Guarantor and the
Company each irrevocably waives, to the fullest extent permitted by
law, any objection to any suit, action or proceeding that may be
brought in connection with this Agreement, including such actions,
suits or proceedings relating to securities laws of the United States
of America or any state thereof, in such courts whether on the grounds
of venue, residence or domicile or on the ground that any such suit,
action or proceeding has been brought in an inconvenient forum. The
Parent Guarantor and the Company each agree that final judgment in any
such suit, action or proceeding brought in such court shall be
conclusive and binding upon the Parent Guarantor or the Company, as the
case may be, and may be enforced in any court to the jurisdiction of
which the Parent Guarantor or the Company, as the case may be, is
subject by a suit upon such judgment; provided that service of process
is affected upon the Parent Guarantor or the Company, as the case may
be, in the manner provided by this Section 13.
20
(b) The Parent Guarantor and the Company each have appointed CT
Corporation System, with offices on the date hereof at 818 West
Seventh Street, Suite 200, Los Angeles, California 90017, as its
authorized agent (the "Authorized Agent"), upon whom process may be
served in any suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated herein which may be
instituted in any state or U.S. Federal court in the Borough of
Manhattan, The City of New York, New York, and each expressly accepts
the non-exclusive jurisdiction of any such court in respect of any
such suit, action or proceeding. The Parent Guarantor and the Company
hereby represent and warrant that the Authorized Agent has accepted
such appointment and has agreed to act as said agent for service of
process, and the Parent Guarantor and the Company agree to take any
and all action, including the filing of any and all documents that may
be necessary to continue such respective appointment in full force and
effect for a period of seven years from the date of this Agreement.
Service of process upon the Authorized Agent shall be deemed, in every
respect, effective service of process upon the Parent Guarantor and
the Company. Notwithstanding the foregoing, any action involving the
Parent Guarantor or the Company arising out of or relating to this
Agreement may be instituted in any court of competent jurisdiction in
any other jurisdiction.
(c) Any action, suit or proceeding brought by the Parent Guarantor
or the Company against any Initial Purchaser arising out of or based
upon this Agreement and the transactions contemplated herein shall be
brought solely in a U.S. Federal or state court in the Borough of
Manhattan, The City of New York, New York, and neither the Parent
Guarantor nor the Company shall initiate or seek to initiate, in the
Cayman Islands or any other jurisdiction other than in such New York
courts, any action, suit or proceeding against any Initial Purchaser
arising out of or based upon this Agreement and the transactions
contemplated herein. The foregoing shall apply, without limitation, to
any action seeking to obtain any injunction or declaratory judgment
against the enforcement of, or a declaratory judgment concerning, any
claim by any Initial Purchaser in respect of this Agreement and any
transaction contemplated herein, and any action challenging the
enforceability of or seeking to invalidate in any respect the
submission by the Parent Guarantor or the Company hereunder to the
jurisdiction of such New York courts or the designation, pursuant to
this Section 13, of the laws of the State of New York as the law
applicable to this Agreement.
(d) The provisions of this Section 13 shall survive any
termination or cancellation of this Agreement.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Parent Guarantor or to the Company, shall be
delivered or sent by mail or telecopy transmission to 920 Disc Drive,
Scotts Valley, California 95066, Attention: William L. Hudson, Senior
Vice President, General Counsel and Secretary (Facsimile: (831)
438-6675) and Glen A. Peterson, Vice President, Corporate Finance and
Treasurer (Facsimile: (831) 438-8931); with a copy to Simpson Thacher
& Bartlett, 3330
21
Hillview Avenue, Palo Alto, California 94304, Attention: William H. Hinman,
Jr. (Facsimile: (650) 251-5002); or
(b) if to the Initial Purchasers, shall be delivered or sent by
mail or telecopy transmission to Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, Attention: Kathryn Walsh (Facsimile:
(212) 507-0462) and J.P. Morgan Securities Inc., 270 Park Avenue, New York,
New York 10017, Attention: Benjamin Ben-Attar (Facsimile: (212) 270-3603);
with copies to Morgan Stanley & Co. Incorporated, 2725 Sand Hill Road,
Menlo Park, California 94125, Attention: William Salisbury (Facsimile:
(650) 234-5605) and Cravath, Swaine & Moore, 825 Eighth Avenue, New York,
New York 10019, Attention: Kris F. Heinzelman (Facsimile: (212) 474-3700).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Initial Purchasers by Morgan Stanley & Co. Incorporated or J.P. Morgan
Securities Inc.
22
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
SEAGATE TECHNOLOGY HDD HOLDINGS
By: /s/ William L. Hudson
-----------------------------------
Name: William L. Hudson
Title: Secretary
SEAGATE TECHNOLOGY HOLDINGS
By: /s/ William L. Hudson
-----------------------------------
Name: William L. Hudson
Title: Secretary
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
and J.P. Morgan Securities Inc.
Acting severally on behalf of themselves and
the several Initial Purchasers
named in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By: /s/ David Schwarzbach
-----------------------------------
Name: David Schwarzbach
Title: Vice President
By: J.P. Morgan Securities Inc.
By: /s/ Benjamin Ben-Attar
-----------------------------------
Name: Benjamin Ben-Attar
Title: Vice President
23
SCHEDULE I
Initial Purchaser Principal Amount of Securities
to be Purchased
Morgan Stanley & Co. Incorporated ...................... $140,000,000
J.P. Morgan Securities Inc.............................. $140,000,000
Credit Suisse First Boston Corporation.................. $ 40,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated...... $ 40,000,000
Salomon Smith Barney Inc................................ $ 40,000,000
--------------------------
Total: $400,000,000