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EXHIBIT 99.1
DELL COMPUTER CORPORATION
UNDERWRITING AGREEMENT
April 22, 1998
Dell Computer Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters") $200,000,000 principal amount of its
6.55% Senior Notes Due 2008 (the "Senior Notes") and $300,000,000 of its 7.10%
Senior Debentures Due 2028 (the "Senior Debentures" and, together with the
Senior Notes, the "Offered Securities") to be issued pursuant to the provisions
of an Indenture to be dated as of April 27, 1998 (the "Indenture") between the
Company and Chase Bank of Texas, National Association, as Trustee (the
"Trustee").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Offered Securities and shall promptly hereafter file with or
transmit for filing to the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "Preliminary Prospectus" means the preliminary prospectus
supplement specifically relating to the Offered Securities (which has been filed
with the Commission pursuant to Rule 424 under the Securities Act), together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "Preliminary Prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
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1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and, to the best of the Company's knowledge, no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) Each document filed by the Company on or prior to the
Closing Date pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects with
the requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) the Registration Statement, when it became
effective, complied, and on the Closing Date will comply, in all material
respects with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iii) the Registration Statement,
when it became effective, did not contain, and on the Closing Date will not
contain, any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iv) the Preliminary Prospectus, at the time it was filed with
the Commission pursuant to Rule 424(b) under the Securities Act, complied in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder, (v) the Prospectus, as of
the date hereof and on the Closing Date, will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder and (vi) the Prospectus, as of the date
hereof and on the Closing Date, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties set forth
in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
either Underwriter furnished to the Company in writing by such Underwriter
through Morgan Stanley & Co. Incorporated (the "Manager") expressly for use
therein or (B) to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware and is duly qualified to transact business and is in good standing as a
foreign corporation 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 Company and its Subsidiaries (as defined
below), taken as a whole. The Company and its Subsidiaries, taken together, have
the corporate or partnership power and
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authority to own or lease the property and conduct the business of the Company
and the Subsidiaries as described in the Prospectus. As used herein, the term
"Subsidiary" shall mean any corporation, partnership, association or other
business entity that is consolidated with the Company for accounting purposes in
accordance with generally accepted accounting principles.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Indenture has been duly qualified under the Trust
Indenture Act and on the Closing Date will be duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and delivery
by the Trustee, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as such
enforcement is subject to any applicable bankruptcy, insolvency, reorganization
or similar law relating to or affecting creditors' rights generally and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(f) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as such enforcement is
subject to any applicable bankruptcy, insolvency, reorganization or similar law
relating to or affecting creditors' rights generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
Subsidiaries that is material to the Company and its Subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture and the Offered Securities, except such as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(h) There has not occurred any material adverse change, or any
development known to the Company that it expects to involve a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and
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its Subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement).
(i) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(j) The Company and its 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 and trade names currently employed by
them in connection with the business now operated by them, and neither the
Company nor any of its 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 result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its Subsidiaries, taken as a whole.
2. TERMS OF PUBLIC OFFERING. Subject to the terms and
conditions set forth in this Agreement, the Company hereby agrees to sell to the
several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Senior Notes and Senior Debentures
set forth in Schedule I hereto opposite its name at 99.195% of the principal
amount of the Senior Notes and 98.887% of the principal amount of the Senior
Debentures--the purchase price--plus, in each case, accrued interest from April
15, 1998 to the date of payment and delivery.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the Offered
Securities as soon after this Agreement has been entered into as in the
Manager's judgment is advisable. The Company is further advised by the Manager
that the Senior Notes are to be offered to the public initially at 99.845% of
their principal amount and that the Senior Debentures are to be offered to the
public initially at 99.762% of their principal amount--the public offering
price--plus, in each case, accrued interest from April 15, 1998 and to certain
dealers selected by the Manager at a price that represents a concession not in
excess of .400% of the principal amount of the Senior Notes and .500% of the
principal amount of the Senior Debentures under their public offering price and
that any Underwriter may allow, and such dealers may reallow, a concession to
certain other dealers not in excess of .250% of the principal amount of the
Senior Notes and .250% of the principal amount of the Senior Debentures.
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3. PAYMENT AND DELIVERY. Payment for the Offered Securities
shall be made by wire transfer of immediately available (same day) funds payable
to the order of the Company at the office of Morgan Stanley & Co. Incorporated,
1585 Broadway, New York, New York, at 10:00 A.M., local time, on April 27, 1998,
or at such other time on the same or such other date, not later than May 4,
1998, as shall be designated in writing by the Manager. The time and date of
such payment are referred to herein as the Closing Date.
Payment for the Offered Securities shall be made against
delivery to the Manager for the respective accounts of the several Underwriters
of the Offered Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of delivery, with any transfer taxes payable in connection with the
transfer of the Offered Securities to the Underwriters duly paid.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters 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 any of 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 known to the Company that it expects to involve a
prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and
its Subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in the
judgment of the Manager, is material and adverse and that
makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the
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Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of the General Corporate Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own or lease its property and to conduct its
business as described in the Prospectus and is duly qualified
to transact business and is in good standing as a foreign
corporation in the State of Texas;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company;
(iv) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Indenture and the Offered Securities will
not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to
the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its Subsidiaries
that is material to the Company and its Subsidiaries, taken as
a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Offered Securities,
except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and
sale of the Offered Securities;
(v) the statements (A) in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Offered Securities" and (B) in the Registration Statement
under Item 15, in each case insofar as such statements
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constitute summaries of the legal matters or documents
referred to therein, fairly present the information called for
with respect to such legal matters and documents and fairly
summarize the matters referred to therein;
(vi) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required;
(vii) the Company is not an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended; and
(viii) (A) each document filed by the Company
pursuant to the Exchange Act on or prior to the Closing Date
and incorporated by reference into the Prospectus (except for
financial statements and schedules and other financial data
included therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material
respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder,
and (B) the Registration Statement and the Prospectus (except
for financial statements and schedules and other financial
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder.
The opinion of the Company's counsel described in this paragraph (c)
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
Such counsel shall also deliver to the Underwriters a written statement
to the effect that (1) no fact has come to such counsel's attention that has
caused such counsel to believe that (except for financial statements and
schedules and other financial data included therein as to which such counsel
need not make such statement and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) the Registration
Statement, when it became effective, contained, or as of the date of such
written statement contains, any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (2) no fact has come to
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such counsel's attention that has caused such counsel to believe that (except
for financial statements and schedules and other financial data included therein
as to which such counsel need not make such statement) the Prospectus, as of the
date of such written statement, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) The Underwriters shall have received on the Closing
Date an opinion of Vinson & Elkins L.L.P., counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Indenture has been duly qualified under the
Trust Indenture Act and, assuming due authorization, execution and delivery by
the Trustee, constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as such
enforcement is subject to any applicable bankruptcy, insolvency, reorganization
or other law relating to or affecting creditors' rights generally and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(ii) the Offered Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the benefits of
the Indenture and will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforcement is subject to any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights generally
and general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the statements in the Prospectus under the
captions "Description of Debt Securities" and "Description of Offered
Securities," insofar as such statements constitute summaries of the legal
matters or documents referred to therein, fairly present the information called
for with respect to such legal matters or documents and fairly summarize the
matters referred to therein; and
(iv) the Registration Statement and the Prospectus
(except for financial statements and schedules and other financial data included
therein, as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder.
With respect to the matters specified in subparagraphs (i) and (ii) of
this paragraph (d), such counsel shall be entitled to rely on the opinion of the
Company's counsel referred to in paragraph (c) above.
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The opinion of Vinson & Elkins L.L.P. described in this paragraph (d)
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
Such counsel shall also deliver to the Underwriters a written statement
to the effect that (1) no fact has come to such counsel's attention that has
caused such counsel to believe that (except for financial statements and
schedules and other financial data included therein as to which such counsel
need not make such statement and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) the Registration
Statement, when it became effective, contained, or as of the date of such
written statement contains, any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (2) no fact has come to such
counsel's attention that has caused such counsel to believe that (except for
financial statements and schedules and other financial data included therein as
to which such counsel need not make such statement) the Prospectus, as of the
date of such written statement, contained any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such counsel may state that such statements are based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof (including the documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(e) The Underwriters shall have received on the Closing Date
an opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (ii) and (iii)
of paragraph (c) above and subparagraphs (i), (ii), (iii) and (iv) of
paragraph (d) above. Such counsel shall also deliver to the
Underwriters a written statement covering the matters described in the
last paragraph of paragraph (d) above and may state that such
statements are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference)
and review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriters, from Price Waterhouse LLP, the Company's independent
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 or incorporated by reference into the
Prospectus.
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5. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to each Underwriter a conformed copy of the
Registration Statement (including exhibits thereto) and to furnish to
the Manager in New York City, without charge, prior to 3:00 p.m. local
time on the business day following the date of this Agreement and
during the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales of Offered Securities by an Underwriter or
dealer, but in any event no later than 270 days after the date of this
Agreement, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered Securities may
have been sold by the Manager on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable
law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such qualification
for as long as the Manager shall reasonably request.
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(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
or statements that will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
(f) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than (i) the
Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the fees, disbursements
and expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Offered Securities
under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, the
Preliminary Prospectus, the Prospectus and amendments and supplements
to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all costs and expenses related to the
transfer and delivery of the Offered Securities to the Underwriters,
including any transfer or other taxes payable thereon; (iii) the
reasonable fees and disbursements of counsel for the Underwriters in
connection with qualification of the Offered Securities for offer and
sale under state securities or Blue Sky laws as provided in Section
5(d) hereof; (iv) the cost of printing certificates representing the
Offered Securities; and (v) the costs and charges of any transfer
agent, registrar or depositary.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls either Underwriter 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 by either Underwriter or any such
controlling person 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 the Registration Statement or any amendment thereof,
the Preliminary Prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except 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 either Underwriter furnished to the Company in
writing by such Underwriter through the Manager expressly for use therein.
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(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed
the Registration Statement 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 Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, the Preliminary
Prospectus, the Prospectus 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 either paragraph (a) or (b) of this Section
6, 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 fees and disbursements of such counsel reasonably
incurred 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 actual or potential differing interests between them. 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 as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its prior 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. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its prior written consent if (i) such settlement is entered into more
than 30 days after
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receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall have neither (A) reimbursed the indemnified party in
accordance with such request prior to the date of such settlement nor (B)
notified the indemnified party in writing that it is disputing some or all of
the indemnified party's claim for indemnification. 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
paragraph (a) or (b) of this Section 6 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 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 Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (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 (i) above but also the relative fault of the Company on
the one hand and of the Underwriters 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 Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering price
of the Offered Securities. The relative fault of the Company on the one hand and
the Underwriters 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 Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 6 are several in proportion to the
respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of
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allocation that does not take account of the equitable considerations referred
to in paragraph (d) of this Section 6. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph 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 6, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter 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 6 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.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and other statements of 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 Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. TERMINATION. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) 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 National Association of Securities Dealers, Inc., 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 The Nasdaq National Market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, either
of the Underwriters shall fail or refuse to purchase Offered Securities that it
has agreed to purchase hereunder on such
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date, and the aggregate amount of Offered Securities which such defaulting
Underwriter agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Offered Securities to be purchased on such date,
the other Underwriter shall be obligated to purchase the Offered Securities
which such defaulting Underwriter agreed but failed or refused to purchase on
such date; provided that in no event shall the amount of Offered Securities that
either of the Underwriters has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
amount of Offered Securities without the written consent of such Underwriter.
If, on the Closing Date, either or both of the Underwriters shall fail or refuse
to purchase Offered Securities and the aggregate amount of Offered Securities
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Offered Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Offered Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager 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 Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
either 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 Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
9. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. 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.
12. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors, and no
other person will have any right or obligation hereunder.
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13. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and if sent to the Underwriters, will be mailed,
delivered or sent by facsimile transmission and confirmed to the Manager at 1585
Broadway, 2nd Floor, New York, New York 10036 (facsimile number, 212-761-0538),
attention: Legal Department; or if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to the Company at One
Dell Way, Round Rock, Texas 78682 (facsimile number 512-728-0538), attention:
Treasurer.
Very truly yours,
Dell Computer Corporation
By: /s/ Alex C. Smith
--------------------------
Alex C. Smith
Vice President, Treasurer
Accepted, April 22, 1998
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Acting severally on behalf of themselves
and the several Underwriters named herein.
By Morgan Stanley & Co. Incorporated
By: /s/ Steven B. Fitzpatrick
----------------------------------------
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SCHEDULE I
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SENIOR NOTES TO BE SENIOR DEBENTURES
UNDERWRITER PURCHASED TO BE PURCHASED
----------- ------------------- ------------------
Morgan Stanley & Co. Incorporated.............. $100,000,000 $150,000,000
Goldman, Sachs & Co............................ $100,000,000 $150,000,000
------------ ------------
Total $200,000,000 $300,000,000
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