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EXHIBIT 1.1
QUANTUM CORPORATION
6-3/8% Convertible Subordinated Debentures
STANDBY AGREEMENT
New York, New York
December 20, 1996
SALOMON BROTHERS INC
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Quantum Corporation, a Delaware corporation (the "Company"), intends
to call for redemption on January 19, 1997 (the "Redemption Date"), all of its
outstanding 6-3/8% Convertible Subordinated Debentures due April 1, 2002 (the
"Debentures") at a redemption price of $1,038.25 per $1,000 principal amount of
Debentures, plus accrued interest of $19.13 from October 1, 1996 to the
Redemption Date, for a total redemption price of $1057.38 per $1,000 principal
amount of Debentures (the "Redemption Price"). The Debentures are convertible
into shares of common stock, $.01 par value per share (the "Common Stock"), of
the Company at any time prior to 5:00 p.m., Chicago, Illinois time, on January
17, 1997 (the trading day immediately preceding the Redemption Date) (the
"Conversion Date").
In order to ensure that the Company will have available sufficient
funds to redeem any Debentures not converted on or prior to the Conversion Date,
the Company desires to make arrangements pursuant to which you (the "Purchaser")
will, on the Redemption Date or, if the Redemption Date is not a business day,
the next business day thereafter, purchase shares of Common Stock that would
have been issuable upon the conversion of the Debentures that have not been
surrendered for conversion prior to 5:00 p.m., Chicago, Illinois time, on the
Conversion Date.
1. Representations and Warranties. The Company represents
and warrants to the Purchaser as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in Section 1(g) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations promulgated thereunder, and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file number
333-______) on such Form, including a related preliminary prospectus, for the
registration under the Act of the issuance by the Company of the shares of
Common Stock issuable upon conversion by the Purchaser of Debentures and the
sale by the Purchaser of any shares of Common Stock that may be acquired by it
as contemplated by this Standby Agreement (this "Standby Agreement" or this
"Agreement"). The Company may have filed one or more amendments, including the
related preliminary
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prospectus, each of which previously has been provided to you. The Company will
next file with the Commission one of the following: (i) prior to effectiveness
of such Registration Statement, a further amendment to such Registration
Statement, including the form of final prospectus, (ii) a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4), or (iii) a final prospectus in
accordance with Rules 415 and 424(b)(2) or (5). In the case of clause (ii), the
Company has included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by the Act and
the rules thereunder or to be included in the Prospectus with respect to the
Common Stock registered pursuant to the Registration Statement and the offering
thereof. As filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together with all other
such required information, with respect to the Common Stock registered pursuant
to the Registration Statement and the offering thereof and, except to the extent
the Purchaser shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. If the Registration Statement
contains the undertaking specified by Regulation S-K Item 512(a), the
Registration Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance with
Rule 424(b), on the Conversion Date, on the Redemption Date and on the Closing
Date, the Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the respective rules and
regulations thereunder; on the Effective Date, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b), on the Conversion Date, on the
Redemption Date and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the Purchaser
through the Purchaser specifically for inclusion in the Registration Statement
or the Prospectus (or any supplement thereto).
(c) The Debentures are convertible into Common Stock at a
rate of 55.10 shares of Common Stock per $1,000 principal amount of Debentures.
At the Execution Time, there were outstanding $92,753,000 aggregate principal
amount of Debentures and the Company has duly authorized the redemption of all
outstanding Debentures on the Redemption Date at the Redemption Price; by the
close of business on the business day following the date of execution hereof,
all the Debentures shall have been duly called for redemption in accordance with
the indenture, dated as of April 1, 1992 (the "Indenture"), between the Company
and LaSalle National Bank, as Trustee (the "Trustee"); and the right to convert
the Debentures into shares of Common Stock will, as a result of such call,
expire at 5:00 p.m., Chicago, Illinois time, on the Conversion Date. A copy of
the form of notice or redemption and the related letter of transmittal
(collectively, the "Notice of Redemption") has been heretofore delivered to you.
The Indenture and the Debentures have been duly authorized, executed and
delivered by the Company and constitute legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective
terms.
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(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or that might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to facilitate the
conversion of the Debentures.
(e) The Company has neither paid nor given, nor will pay or
give, directly or indirectly, any commission or other remuneration for
soliciting the conversion of Debentures into Common Stock and cash.
(f) Neither the issue and sale of the Securities (as defined
in Section 2(b) hereof), nor the consummation of any other of the transactions
herein contemplated, nor fulfillment of the terms hereof will conflict with,
result in a breach or violation of, or constitute a default under any law or the
charter or by-laws of the Company or the terms of any material indenture or
other material agreement or instrument to which the Company or any of its
subsidiaries is a party or bound or any material judgment, order or decree
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries.
(g) The terms that follow, when used in this Agreement, shall
have the meanings indicated. The term "business day" shall have the meaning
ascribed to such term in the Indenture. The term "Effective Date" shall mean
each date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference in to the Registration
Statement is filed. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Preliminary
Prospectus" shall mean any preliminary prospectus referred to in Section 1(a)
above and any preliminary prospectus included in the Registration Statement at
the Effective Date that omits Rule 430A Information. "Prospectus" shall mean the
prospectus relating to the Securities (as hereinafter defined) that is first
filed pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant
to Rule 424(b) is required, shall mean the form of final prospectus relating to
the Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to in
Section 1(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended; such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. "Rule 430A Information" means information with
respect to the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 that were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of such Preliminary Prospectus or the Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of any Preliminary Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference.
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2. Purchase of Securities. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth:
(a) The Purchaser agrees to surrender for conversion into
Common Stock prior to 5:00 p.m., Chicago, Illinois time, on the Conversion Date
all Debentures purchased by the Purchaser pursuant to Section 4 hereof or
otherwise held by the Purchaser. The shares of Common Stock issued to the
Purchaser upon the conversion of Debentures are referred to as the "Conversion
Securities."
(b) If any Debentures have not been surrendered for
conversion prior to 5:00 p.m., Chicago, Illinois time on the Conversion Date,
the Company shall sell to the Purchaser, and the Purchaser shall purchase from
the Company, at a purchase price of $19.20 per share, such whole number of
shares of Common Stock as would have been issuable upon conversion of all
Debentures not surrendered for conversion. The shares of Common Stock to be
purchased pursuant to this Section 2(b) are referred to as the "Purchased
Securities" and, together with the Conversion Securities, the "Securities."
(c) It is understood that the Purchaser intends to resell the
Purchased Securities from time to time at prices prevailing in the open market.
On or prior to the fifteenth day after the Redemption Date, shall remit to the
Company 50% of the excess, if any, of the aggregate proceeds received by the
Purchaser from the sale of such Purchased Securities (net of selling
concessions, transfer taxes and other expenses of sale) over an amount equal to
$19.20 multiplied by the number of Purchased Securities sold by the Purchaser.
Upon completion of the sale of the Securities, the Purchaser shall furnish to
the Company a statement setting forth the aggregate proceeds received on the
sale thereof and the applicable selling concessions, transfer taxes and other
expenses of sale. For purposes of the foregoing determination, any Securities
not sold by or for the account of the Purchaser prior to the close of business
on the tenth day after the Redemption Date shall be deemed to have been sold on
such tenth day for an amount equal to the last reported sale price of the Common
Stock on such day. Nothing contained herein shall limit the right of the
Purchaser, in its discretion, to determine the price or prices at which, or the
time or times when, any Securities shall be sold, whether or not prior to the
Redemption Date and whether or not for long or short account.
(d) The Company shall inform the Purchaser no later than 5:30
p.m. Chicago, Illinois time, on the Conversion Date, of the number and amount of
Purchased Securities. At or before 10:00 a.m. Chicago, Illinois time on the
Redemption Date or, if the Redemption Date is not a business day, the next
business day thereafter, the Purchaser shall transmit payment for the Purchased
Securities to or upon the order of the Company by wire transfer to an account or
accounts designated in writing by the Company, payable in same-day funds.
Whereupon delivery of the Purchased Securities shall be made to the Purchaser.
The Purchaser shall not be responsible for any delay in receipt of any such
wire transfer, provided that such wire transfer is effected as set forth in
this Section 2(d), and provided, further, that this sentence shall not in any
way be construed as relieving the Purchaser from its obligation to make payment
to the Company of any amounts required to be paid pursuant to this Section 2,
but instead is intended only to express the agreement of the parties that the
Purchaser shall not have any responsibility or liability for any temporary
delays in receipt of such funds resulting from delays in processing of wire
transfers in the United States federal wire transfer system. The date and
time of payment and delivery of the Purchased Securities is herein call the
"Closing Date." The Closing Date and time may be postponed by agreement between
the Purchaser and the Company.
3. Compensation. As compensation for the commitment of the
Purchaser hereunder, the Company will pay to the Purchaser an amount equal to
the sum of (i) $974,047 plus (ii) if the aggregate number of Compensable
Shares exceeds 255,534 shares but does not exceed 766,603 shares, an
additional $0.58 per Compensable Share for the aggregate number of all
Compensable Shares
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or, if the aggregate number of Compensable Shares exceeds 766,603 shares, an
additional $0.77 per Compensable Share for the aggregate number of all
Compensable Shares. The term "Compensable Shares" means, collectively, Purchased
Securities plus any Conversion Securities that are acquired by the Purchaser or
that the Purchaser obtained the right to acquire on a date when the last
reported sale price of the Common Stock on the Nasdaq Stock Market was less than
$19.20 per share.
Such compensation shall be paid to the Purchaser by wire transfer to
an account designated in writing by the Purchaser, payable in same-day funds on
(A) if the Purchaser is required to purchase any Purchased Securities, the
Closing Date, or (B) otherwise, as soon as practicable after the Conversion Date
(but in no event later than two business days thereafter).
4. Additional Purchases. The Purchaser may purchase Debentures, in
the open market or otherwise, in such amounts and at such prices as the
Purchaser may deem advisable. All Debentures so purchased will be converted by
the Purchaser into Common Stock in accordance with Section 2(a) hereof. The
Common Stock acquired by the Purchaser upon conversion of any Debentures
acquired pursuant to this Section 4 may be sold at any time or from time to time
by the Purchaser. It is understood that, for the purpose of stabilizing the
price of the Common Stock or otherwise, the Purchaser may undertake transactions
involving the Common Stock and the Debentures, in the open market or otherwise,
for long or short account, on such terms it may deem advisable and it may
overallot in arranging sales.
5. Agreements. The Company agrees with the Purchaser that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Purchaser of such timely filing. The Company will
promptly advise the Purchaser (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b), (iii) when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it
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shall be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) prepare and file with the Commission,
subject to the second sentence of Section 5(a) hereof, an amendment or
supplement that will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus to you in such quantities
as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Purchaser an earnings statement or
statements of the Company and its subsidiaries that will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Purchaser and counsel for
the Purchaser, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by a
Purchaser or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Purchaser may reasonably request. The Company will pay the expenses of printing
or other production of all documents relating to the transactions contemplated
hereby. The Company will pay all transfer taxes as may be imposed on the
Purchaser in connection with its purchase of Debentures pursuant thereto. The
Company will also pay all reasonable out-of-pocket expenses of the Purchaser,
excluding the fees and disbursements of Purchaser's counsel except as provided
below.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the Purchaser may
designate, will maintain such qualifications in effect so long as required for
the distribution of the Securities (up to a year from the date hereof) and will
pay all costs and expenses in connection therewith, including the fees and
disbursements of the Purchaser's counsel in relation thereto; provided, however,
that the Company will not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified.
(f) The Company will mail or cause to be mailed not later
than the business day following the date of execution hereof the Notice of
Redemption by first class mail to the registered holders of the Debentures on
such date, which mailing will conform to the requirements of the Indenture.
(g) The Company will direct the Trustee to advise the
Purchaser daily of the Debentures surrendered for redemption or for conversion
on the preceding day.
(h) The Company will not take any action the effect of which
would be to require an adjustment in the conversion price of the Debentures.
(i) The Company will not, prior to the Conversion Date and
for a period of 90 days following the Redemption Date, without the prior written
consent of the Purchaser, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce, or file for the registration of, the
offering of, any other shares of Common Stock or any securities convertible
into, or exchangeable for, shares of Common Stock; provided, however, that (i)
the Company may issue and sell or register Common Stock pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time and (ii) the Company may issue Common
Stock issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time; provided, further, that such restriction
shall not apply if the Purchaser does not acquire more than 5% Purchased
Securities.
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(j) The Company will cause its officers and directors to not,
prior to the Closing Date, without the prior written consent of the Purchaser,
offer, sell, or contract to sell, or otherwise dispose of, directly or
indirectly, or announce, or file for the registration of, the offering of, and
any other shares of Common Stock or any securities convertible into, or
exchangeable for shares of Common Stock.
(k) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business With Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
6. Conditions to the Obligations of the Purchaser. The obligations
of the Purchaser hereunder to purchase any Purchased Securities shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company contained herein as of the Execution Time, each
Effective Date occurring after the Execution Time, the Conversion Date, and the
Redemption Date and the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Purchaser agrees in writing to a later
time, the Registration Statement will become effective not later than 6:00 p.m.,
New York City time, on the business day next succeeding the date hereof; if
filing of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) On the date of this Agreement and on the Closing Date,
the Company shall have furnished to the Purchaser the opinion of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, P.C., counsel for the Company, addressed to the Purchaser to
the effect that:
(i) The Company is duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus.
(ii) The Company's authorized capital stock as of
September 29, 1996 is as set forth in the Prospectus; the capital stock of
the Company conforms to the descriptions thereof in the Prospectus; and
the statements in the Prospectus under the heading "Redemption of
Debentures and Expiration of Conversion Privilege" fairly summarize in all
material respects the legal matters therein described.
(iii) The Securities have been duly and validly
authorized and, when issued and delivered upon conversion of any
Debentures in accordance with the Indenture or to the Purchaser against
payment therefor pursuant to the Standby Agreement, will be fully paid,
nonassessable and free of preemptive rights; the Securities have been duly
authorized for listing,
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subject to official notice of issuance, on the Nasdaq Stock Market; and
the form of the certificate for the Common Stock is in valid and
sufficient form.
(iv) The Standby Agreement has been duly authorized,
executed and delivered by the Company.
(v) Upon the Company's taking the actions enumerated in
such counsel's opinion, all the Debentures will have been duly called for
redemption by the close of business on the Redemption Date and the right
to convert the Debentures into shares of Common Stock will expire at the
close of business on the Conversion Date.
(vi) No consent, approval, authorization or order of any
California, New York or federal court or governmental agency or body is
required on the part of the Company for the redemption or conversion of
the Debentures or the consummation of the transactions contemplated by the
Standby Agreement, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Purchaser (as to which such counsel need express no opinion).
(vii) Neither the issue and sale by the Company of the
Securities, nor the consummation by the Company of any other of the
transactions contemplated under the Standby Agreement nor the fulfillment
of the terms of the Standby Agreement by the Company will conflict with,
result in a breach or violation of, or constitute a default under, any
California, New York or federal law or the Delaware General Corporation
Law (the "DGCL"), or the Certificate of Incorporation or Bylaws of the
Company or the terms the Indenture, the Debentures, or the Company's
Credit Agreement dated October 3, 1994, as amended, or any judgment, order
or decree known to such counsel to be applicable to the Company or any of
its subsidiaries of any California, New York or federal court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries (each, an
"Entity") or of any Delaware Entity applying the DGCL.
(viii) The Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings for that purpose have been
instituted or threatened; and the Registration Statement and the
Prospectus (other than the financial statements and other financial and
statistical information contained therein as to which such counsel need
not express an opinion) comply as to form in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder.
(ix) To such counsel's knowledge, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body, or any arbitrator involving the Company or any
of its subsidiaries of a character required to be disclosed in the
Registration Statement that is not adequately disclosed in the Prospectus.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company,
and representatives of the Purchaser, at which the contents of the Registration
Statement and
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Prospectus and related matters were discussed and, although, except as set forth
in paragraph (i) above, such counsel need not pass upon, and need not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus and need not make any
independent check or verification thereof, during the course of such
participation, no facts came to the attention of such counsel that lead them to
believe that, as of the Effective Date, the Registration Statement contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading; it being understood that such counsel need not express a belief
with respect to the financial statements, schedules and notes thereto and other
financial and statistical data included in the Registration Statement or the
Prospectus.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
United States, the DGCL, the State of California or the State of New York (it
being understood that such counsel's opinion as to matters of laws of the State
New York shall be limited to those laws as govern the enforceability of the
Indenture, the Debentures and the Company's Credit Agreement, dated October 3,
1994, as amended), to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Purchaser and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus in
this Section 6(b) include any supplements thereto on the Closing Date.
(c) On the date of this Agreement and on the Closing Date,
the Company shall have furnished to the Purchaser the opinion, addressed to the
Purchaser, of the Company's special Swiss counsel, which counsel shall be
reasonably satisfactory to the Purchaser, to the effect that:
(i) The Company is duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction of Switzerland in which it owns or leases
properties, or conducts any business, so as to require such qualification.
(d) On the date of this Agreement and on the Closing Date,
the Company shall have furnished to the Purchaser the opinion, addressed to the
Purchaser, of the Company's special Irish counsel, which counsel shall be
reasonably satisfactory to the Purchaser, to the effect that:
(i) The Company is duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction of Ireland in which it owns or leases
properties, or conducts any business, so as to require such qualification.
(e) On the date of this Agreement and on the Closing Date,
the Company shall have furnished to the Purchaser the opinion, addressed to the
Purchaser, of the Company's special Singapore counsel, which counsel shall be
reasonably satisfactory to the Purchaser, to the effect that:
(i) The Company is duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction of Singapore in which it owns or leases
properties, or conducts any business, so as to require such qualification.
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(f) On the date of this Agreement and on the Closing Date,
the Company shall have furnished to the Purchaser the opinion, addressed to the
Purchaser, of the Company's special Indonesian counsel, which counsel shall be
reasonably satisfactory to the Purchaser, to the effect that:
(i) The Company is duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction of Indonesia in which it owns or leases
properties, or conducts any business, so as to require such qualification.
(g) On the date of this Agreement and on the Closing Date,
the Company shall have furnished to the Purchaser the opinion of Xxxxxx X.
Xxxxxx, Vice President, Finance and Corporate General Counsel of the Company,
addressed to the Purchaser to the effect that:
(i) Neither the issue and sale of the Securities, nor
the consummation of any other of the transactions contemplated under
the Standby Agreement nor the fulfillment of the terms of the Standby
Agreement will conflict with, result in a breach or violation of, or
constitute a default under, any law or the Certificate of Incorporation
or Bylaws of the Company or the terms of any indenture or other material
agreement or instrument known to such counsel, after due inquiry, and to
which the Company or any of its subsidiaries is a party or bound or to
which any of the properties or assets of the Company or any of its
subsidiaries is subject, or any judgment, order or decree known to
such counsel to be applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any its
subsidiaries.
(ii) To such counsel's knowledge, after due inquiry,
there is no franchise, contract or other document of a character
required to be disclosed in the Registration Statement or Prospectus,
or to be filed as an exhibit, that is not described or filed as required.
In addition, such counsel shall state that he has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company, and
representatives of the Purchaser, at which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although such
counsel need not pass upon, and need not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus and need not make any independent check or
verification thereof, during the course of such participation, no facts came to
the attention of such counsel that lead him to believe that, as of the Effective
Date, the Registration Statement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its date,
the Prospectus contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances in which they were made, not misleading; it being understood
that such counsel need not express a belief with respect to the financial
statements, schedules and notes thereto in the Registration Statement or the
Prospectus.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of California or the United States, to the extent he deems proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom he believes to be reliable and who are satisfactory to counsel for the
Purchaser and (B) as to matters of fact, to the extent he deems proper, on
certificates of responsible officers of the Company and public officials.
References to the Prospectus in this Section 6(g) include any supplements
thereto on the Closing Date.
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(h) On the date of this Agreement and on the Closing Date,
the Purchaser shall have received from Xxxxxx & Xxxxxxx, counsel for the
Purchaser, such opinion or opinions, dated the date of this Agreement and the
Closing Date, respectively, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Purchaser may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(i) On the date of this Agreement, and on each Effective Date
occurring after the Execution Time and on the Closing Date, the Company shall
have furnished to the Purchaser a certificate of the Company, signed by the
Chief Executive Officer and the Chief Financial Officer of the Company, dated
the date of delivery, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplement to
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of
the date of such certificate as if made on the date of such certificate
and the Company has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
date of such certificate;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(j) At the Execution Time, and on each Effective Date
occurring after the Execution Time on which financial information is included in
the Registration Statement or the Prospectus and on the Closing Date, Ernst &
Young LLP shall have delivered to the Purchaser a letter or letters, dated as of
the date of delivery, in form and substance satisfactory to the Purchaser,
confirming that they are independent auditors within the meaning of the Act and
the applicable published rules and regulations thereunder and stating in effect
that:
(i) in their opinion, the audited consolidated financial
statements and financial statement schedule included in, or incorporated
by reference into, the Registration Statement and/or the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations thereunder;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company; carrying
out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) that would not necessarily
reveal matters of significance with respect to the comments set forth in
such letter; a reading of the fiscal 1997 minutes of the meetings of the
stockholders, Board of Directors and the
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Audit Committee and Compensation Committee of the Company; and inquiries
of certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent audited
consolidated financial statements included in, and the audited
consolidated financial statements incorporated by reference into, the
Registration Statement and the Prospectus, nothing came to their attention
that caused them to believe that:
(A) any unaudited consolidated financial
statements included in, or incorporated by reference into, the
Registration Statement and/or the Prospectus do not comply
form in all material respects with applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q
and with the related published rules and regulations
thereunder; and said unaudited consolidated financial
statements are not in conformity with generally accepted
accounting principles; or
(B) with respect to the period subsequent to the
date of the most recent consolidated financial statements,
audited or unaudited, included in, or incorporated by
reference into, the Registration Statement and/or the
Prospectus, for which internal financial statements are
available, there were any changes, at the internal financial
statement date prior to the date of the letter, in the capital
stock (except for activity pursuant to equity awards under
various benefit plans and conversions of Debentures) or
increases in consolidated long-term debt, inclusive of the
current portion (other than borrowings under credit
arrangements in existence at September 29, 1996 or increases
caused by changes in foreign currency exchange rates), or
decreases in the consolidated net current assets or
stockholders' equity of the Company as compared with the
amounts shown in the September 29, 1996 unaudited consolidated
balance sheet included in the Registration Statement and the
Prospectus, or for the period from the date of the most recent
financial statements included in the Registration Statement
and the Prospectus to the date of the most recent internal
financial statements there were any decreases, as compared
with the corresponding period in the preceding quarter in
consolidated net sales or in net income, except in all
instances for changes, increases or decreases set forth in
such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless the Purchaser, in writing, deems such explanation
unnecessary; and
(C) with respect to the period subsequent to the
date of the most recent financial statements, audited or
unaudited, included in the Registration Statement and the
Prospectus for which internal financial statements are not
available, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the capital stock (except for activity pursuant to equity
awards under various benefit plans and conversions of
Debentures), or any increases in consolidated long-term debt
(other than borrowings under credit arrangements in existence
at September 29, 1996 or increases caused by changes in
foreign currency exchange rates), of the Company as compared
with the amounts shown in the September 29, 1996 unaudited
consolidated balance sheet included in the Registration
Statement and the Prospectus; and
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(iii) they have performed certain other specified
procedures as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is limited to
accounting or financial information derived from the general accounting
records of the Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus, including certain of the information set
forth under the captions "Risk Factors," "Capitalization" and "Redemption
of Debentures and Expiration of Conversion Privilege," and certain
information incorporated by reference in the Registration Statement and
Prospectus as agreed to by the Purchaser's counsel, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Prospectus in this Section 6(j) include any supplement thereto
at the date of the letter.
(k) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in Section 6(j) hereof or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the Purchaser,
so material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto).
(l) The Company shall have furnished to the Purchaser such
further information, certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be canceled at, or at any time prior
to, the Closing Date by the Purchaser. Notice of such cancellation shall be
given to the Company in writing or by telephone confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx on the date of this Agreement or on the Closing
Date, as applicable.
7. Reimbursement of Purchaser's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Purchaser set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Purchaser, the Company will reimburse the Purchaser upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Purchaser, the directors, officers, employees and agents of the Purchaser and
each person who controls the Purchaser
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within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in, or incorporated by reference into, the Registration
Statement for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage or liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Purchaser through
the Purchaser specifically for inclusion therein. This indemnity agreement will
be in addition to any liability that the Company may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and under the heading "Standby Arrangements" in any Preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of the Purchaser for inclusion in any Preliminary Prospectus or the
Prospectus, and you confirm that such statements are correct.
(b) The Purchaser severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Purchaser, but only with reference
to the statements set forth in the last paragraph of the cover page and the
statements under the heading "Standby Arrangements" in any Preliminary
Prospectus and the Prospectus. This indemnity agreement will be in addition to
any liability that the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under Section 8(a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
Section 8(a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
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available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or comprise or consent to the entry of any judgment
with respect to any pending or threatened claim, action suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in Section 8(a)
or (b) above is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Purchaser agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively, "Losses") to which the Company and the Purchaser may be subject
in such proportion as is appropriate to reflect the relative benefits received
by Company and by the Purchaser from the offering of the Securities; provided,
however, that in no case shall the Purchaser be responsible for any amount in
excess of the fees payable by the Company to the Purchaser pursuant to Section 3
hereof. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Purchaser shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Purchaser in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the sum of (i) the principal amount of Debentures
converted by the Purchaser pursuant to Section 2(a) hereof and (ii) the net
amount paid by the Purchaser to the Company at the Closing, and benefits
received by the Purchaser shall be deemed to be equal to the total fees payable
by the Company to the Purchaser pursuant to Section 3 hereof. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or the Purchaser. The
Company and the Purchaser agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this Section 8(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Purchaser within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of the Purchaser shall have the
same rights to contribution as the Purchaser, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
Section 8(d).
9. Soliciting Conversions. The Purchaser may assist the
Company in soliciting conversion of the Debentures by the holder thereof but
shall not be entitled to compensation by the Company for any such assistance.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company at any
time prior to the Closing Date, if prior to such time (i)(a) trading in the
Company's Common Stock shall have been suspended by the Commission or the Nasdaq
Stock Market or trading in the Debentures shall have been suspended by the
Commission or the Nasdaq Stock Market prior to the Conversion Date, or (b)
trading in securities generally on the New
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York Stock Exchange or the Nasdaq Stock Market shall have been suspended or
limited or minimum prices shall have been established on either of such exchange
or such market, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the Purchaser,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Purchaser set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Purchaser or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive the conversion of any Debentures and the delivery of and payment
for any securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and will be mailed, delivered or telecopied
and confirmed to:
If to Purchaser, addressed to:
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq. and
Xxxxxx X. Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Company:
000 XxXxxxxx Xxxx., Xxxxxxxx 0
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.,
Xxxx X. Xxxx, Esq., and
Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Headings. The headings herein have been inserted for
convenience of reference only and are not intended to be part of, or affect
the meaning or interpretation of, this Agreement.
16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all such
counterparts together shall constitute one and the same instrument.
[signature page follows]
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the Purchaser.
Very truly yours,
QUANTUM CORPORATION
By:
--------------------------------------
Xxxxxxx X. Xxxxx
President and Chief Executive
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
By:
---------------------------------
Xxxxxx X. Xxxxxx
Vice President
