EXHIBIT 1.1
SEAGATE TECHNOLOGY, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
February ___, 1997
From time to time, Seagate Technology, Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or 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 a preliminary prospectus supplement specifically relating to the Offered
Securities, 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"). Reference to documents incorporated by reference shall refer to
documents as amended or supplemented at the relevant date and shall include only
those documents incorporated by reference during the period during which a
Prospectus relating to the Offered Securities is required by law to be
delivered.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
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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 no
proceedings for such purpose are pending before or, to the Company's knowledge,
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed 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 Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, 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, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, 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, except 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 any Underwriter
furnished to the Company in writing by such Underwriter through 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.
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(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) 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
the Underwriting Agreement, will be entitled to the benefits of the Indenture,
and will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
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(h) 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 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 or by the National Association of Securities
Dealers, Inc. (the "NASD") or the New York Stock Exchange (the "NYSE").
(i) There has not occurred any material adverse change, or any development
which could reasonably be expected to result in a prospective material adverse
change, in the financial condition, 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).
(j) There are no legal or governmental proceedings pending or to the
Company's knowledge 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 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.
(k) Each preliminary prospectus filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(l) The Company is not an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(m) To the Company's knowledge, the Company and its subsidiaries (i) are
in compliance with any and all applicable
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xxxxxxx, xxxxxxx, xxxxx and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(n) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(o) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or with
any person or affiliate located in Cuba.
(p) As of the date hereof, except as set forth in the Prospectus
Supplement, all outstanding shares of the significant subsidiaries of the
Company as defined in Rule 1-02 under Regulation S-X are owned by the Company,
either directly, or through wholly owned subsidiaries (other than directors'
qualifying shares and other shares issued to satisfy local ownership
requirements), free and clear of any liens, pledge, encumbrance or any claim of
any other party.
2. TERMS OF PUBLIC OFFERING. The Company is advised by the Manager that
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the Underwriters propose to make a public
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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 terms of the public offering of the Offered Securities are set forth in the
Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided in this Section 3,
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payment for the Offered Securities shall be made by wire transfer payable to the
order of the Company in immediately available, same day funds, at the time and
place set forth in the Underwriting Agreement, upon 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.
Delivery on the Closing Date of any Offered Securities that are Debt
Securities in bearer form shall be effected by delivery of a single temporary
global Debt Security without coupons (the "Global Debt Security") evidencing the
Offered Securities that are Debt Securities in bearer form, to a common
depositary for Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("Cedel") for credit to the respective accounts at
Euro-clear or Cedel of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the Company
in the net amount due to the Company for such Global Debt Security, by the
method and in the form set forth in the Underwriting Agreement. The Company
shall cause definitive Debt Securities in bearer form to be prepared and
delivered in exchange for such Global Debt Security in such manner and at such
time as may be provided in or pursuant to the Indenture; provided, however, that
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the Global Debt Security shall be exchangeable for definitive Debt Securities in
bearer form only on or after the date specified for such purpose in the
Prospectus.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several obligations
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of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of
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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 which could reasonably be expected to result in a
prospective material adverse change in the financial condition,
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 Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has satisfied all of the conditions set forth in this Agreement 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 Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation,
outside counsel for 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 jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or
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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, taken as a whole;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(iv) 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 the Underwriting Agreement, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms;
(v) 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 such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its subsidiaries
that has been filed as an exhibit to the Registration Statement or a
document incorporated by reference in the Registration Statement, or,
to 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, to such counsel's knowledge, 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 or by the NASD or the NYSE;
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(vi) the statements (A) in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution," (B) in
the Registration Statement under Item 15, (C) except as to matters
referenced in Section 4(d) and 4(e) of this Agreement (or in the
opinions delivered to you today pursuant thereto), as to which such
counsel shall express no opinion, in "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (D) in "Item 1 - Legal Proceedings" of
Part II of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present, in all material respects, the
information called for with respect to such legal matters, documents
and proceedings and fairly summarize, in all material respects, the
matters referred to therein;
(vii) except as to matters referenced in Sections 4(d) and 4(e) of
this Agreement (or in the opinions delivered to you today pursuant
thereto), as to which such counsel shall express no opinion, such
counsel does not know of any material 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,
(viii) if the Prospectus Supplement includes a section containing
a description of the Federal income tax considerations in connection
with an investment in the Offered Securities, such counsel shall
opine that the statements in such section are accurate and fairly
summarized in all material respects the matters referred to therein;
(ix) such counsel (A) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements and schedules
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 Exchange Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that (except for
financial statements and schedules as to which such counsel need not
express any belief and except for that part of the
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Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such part
became effective, contained and, as of the date such opinion is
delivered, 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, (C) is of the
opinion that the Registration Statement and Prospectus (except for
financial statements and schedules included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) has no reason to
believe that (except for financial statements and schedules as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits 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.
(d) The Underwriters shall have received on the Closing Date an
opinion of special litigation counsel for the Company, dated the Closing
Date, to the effect that such counsel has read the statements incorporated
in the Prospectus Supplement relating to the litigation between the Company
and [_____________], and such counsel has no reason to believe that such
statements contain any untrue statement of a material fact or omit to state
any material fact necessary to make such statements not misleading.
(e) The Underwriters shall have received on the Closing Date the
opinion of counsel to each of the significant subsidiaries of the Company
as defined in Rule 1-02 under Regulation S-X, dated the Closing Date, to
the effect that, with respect to such Subsidiary of the Company:
(i) Such Subsidiary is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized with full corporate power and authority to own its
properties and conduct its business as presently conducted, and is
duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business conducted by it or
the
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location of the properties owned or leased by it makes such
qualification necessary, except where the failure to be so qualified
would not have a material adverse effet on the Company and its
subsidiaries taken as a whole.
(ii) All outstanding shares of capital stock of such Subsidiary
have been duly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus
Supplement, all outstanding shares of capital stock of such Subsidiary
are owned by the Company either directly or through wholly-owned
subsidiaries (other than directors' qualifying shares and other shares
issued to satisfy local ownership requirements), to the knowledge of
such counsel, free and clear of any security interest, claim, lien or
encumbrance.
It is recognized and understood that the foregoing local opinion
requirements will be modified as necessary or appropriate to adapt the
legal concepts set forth therein to the comparable concepts as existing
under the jurisprudence of the applicable jurisdiction and to conform to
generally accepted local legal practices.
(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to in
subparagraphs (iii), (iv), (v), (vii) (but only as to the statements in the
Prospectus under "Description of Debt Securities" and "Plan of
Distribution") and clauses (B), (C) and (D) of subparagraph (xii) of
paragraph (c) above.
With respect to the subparagraph (ix) of paragraph (c) above, Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation, may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and documents incorporated therein by reference and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified. In rendering such opinion, such counsel may state that it expresses
no opinion as to matters of law of any jurisdiction other than the laws of the
State of California and the laws of the United States, except to the extent
necessary to render the opinions set forth in paragraphs (i), (ii), (iii) and
(iv) with respect to Delaware General Corporation Law and in paragraphs (iii)
and (iv) with
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respect to New York law (and that opinions as to Delaware General Corporation
Law are based solely on such counsel's review of the official statutes of
Delaware). Moreover, such counsel may state that it expresses no opinion as to
any choice of law provisions in any document. In rendering such opinion, such
counsel may also state that any opinion that any document is valid, binding or
enforceable in accordance with its terms is qualified as to: (1) limitations
imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the rights of
creditors generally; (2) rights to indemnification and contribution which may be
limited by applicable law or equitable principles; (3) the effect of general
principles of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing; and (4) the effect of rules of law
governing specific performance, injunctive relief or other equitable remedies
whether considered in a proceeding in equity or at law. In rendering such
opinion, such counsel may rely, as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and certificates
or other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company, provided that copies of any such statements or certificates
shall be delivered to special counsel for the Underwriters.
With respect to clauses (B), (C) and (D) of subparagraph (ix) of
paragraph (c) above, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP may state that their
opinion and belief 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.
The opinion of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional
Corporation, described in paragraph (c) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information
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contained in or incorporated by reference into the Prospectus.
5. COVENANTS OF THE COMPANY. In further consideration of the
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agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) 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 by an Underwriter or dealer, 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 law.
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(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.
(e) To make generally available to the Company's security holders and
to the Manager an earning statement which will satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period beginning on the date of the Underwriting
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 preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
Offered Securities; (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel; (iv) the
qualification of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 6(d), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of any Blue Sky or Legal Investment Memoranda; (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto and of any
preliminary prospectus and the Prospectus and any amendments or supplements
thereto; (vi) the printing and delivery to the Underwriters of copies of
any Blue Sky or Legal Investment Memoranda; (vii) any fees charged by
rating agencies for the rating of the Offered Securities; (viii) the filing
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection with
the Offered Securities; and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors.
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6. INDEMNIFICATION AND CONTRIBUTION.
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(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any 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 any 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, any 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 any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
Indemnity Agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign 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, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
15
(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 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 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 written consent
if (i) such settlement is entered into in good faith more than 45 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement unless such reimbursement
is contested in good faith by the indemnifying party. No indemnifying party
shall, without the prior written
16
consent of the indemnified party which consent shall not be unreasonably
withheld, 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.
17
(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 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 the Underwriting 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 any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial
18
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, any one or more
-----------------------
of the Underwriters shall fail or refuse to purchase Offered Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Offered Securities which such defaulting Underwriter or Underwriters
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 Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Offered Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the amount of Offered
--------
Securities that any Underwriter 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, any Underwriter or 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.
19
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the 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.
20
UNDERWRITING AGREEMENT
___________, 1997
Seagate Technology, Inc.
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Seagate
Technology, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell [Currency and Principal Amount] aggregate initial offering price of [Full
title of Debt Securities] (the "Debt Securities"). The Debt Securities are also
referred to herein as the "Offered Securities." The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of _______________,
1997 (the "Indenture") between the Company and First Trust of California,
National Association, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of ____% of the principal amount of
Debt Securities [, plus accrued interest, if any, from
21
[Date of Offered Securities] to the date of payment and delivery]:/1/
Principal Amount of
Name Debt Securities
---- -----------------------
Xxxxxx Xxxxxxx & Co.
Incorporated
[Syndicate list]
Total . . . . . .
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx, at ______ a.m. (New York time) on ___________,
1997, or at such other time, not later than 5:00 p.m. (New York time) on
__________, 1997, as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated ___________, 1997, and the Prospectus Supplement dated
____________, 1997, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
___________________
/1/ To be added only if the transaction does not close "flat" (i.e., when
the purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will be
computed on the basis of a 360-day year of twelve 30-day months.
22
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]/2/
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Seagate Technology, Inc.
Underwriting Agreement Standard Provisions (Debt Securities) dated _______,
1997, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to a type
of security that is not an Offered Security shall not be deemed to be a part of
this Agreement, and (iii) all references in such document to a type of agreement
that has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
___________________
/2/ To be added only if the transaction does not close flat.
23
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of themselves
and the several Underwriters named herein
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: _______________________________
Name:
Title:
Accepted:
Seagate Technology, Inc.
By: _________________________
Name:
Title:
24
