Attached files
file | filename |
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8-K - FORM 8-K - DELL INC | d81054e8vk.htm |
EX-5.1 - EX-5.1 - DELL INC | d81054exv5w1.htm |
EX-4.4 - EX-4.4 - DELL INC | d81054exv4w4.htm |
EX-4.5 - EX-4.5 - DELL INC | d81054exv4w5.htm |
EX-4.1 - EX-4.1 - DELL INC | d81054exv4w1.htm |
EX-4.3 - EX-4.3 - DELL INC | d81054exv4w3.htm |
EX-4.2 - EX-4.2 - DELL INC | d81054exv4w2.htm |
Exhibit 1.1
Dell Inc.
$300,000,000
Floating Rates Notes due 2014
Floating Rates Notes due 2014
$400,000,000
2.100% Notes due 2014
2.100% Notes due 2014
$400,000,000
3.100% Notes due 2016
3.100% Notes due 2016
$400,000,000
4.625% Notes due 2021
4.625% Notes due 2021
UNDERWRITING AGREEMENT
March 28, 2011
March 28, 2011
Deutsche Bank Securities Inc.
BNP Paribas Securities Corp.
UBS Securities LLC
Wells Fargo Securities, LLC
BNP Paribas Securities Corp.
UBS Securities LLC
Wells Fargo Securities, LLC
As Representatives of the several Underwriters
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
60 Wall Street
New York, NY 10005
Ladies and Gentlemen:
Introductory. Dell Inc., a Delaware corporation (the Company), proposes to issue
and sell to the several underwriters named in Schedule A (the Underwriters), acting
severally and not jointly, the respective amounts set forth in such Schedule A of $300,000,000
aggregate principal amount of the Companys Floating Rate Notes due 2014 (the 2014 Floating
Rate Notes), $400,000,000 aggregate principal amount of the Companys 2.100% Notes due 2014
(the 2014 Notes), $400,000,000 aggregate principal amount of the Companys 3.100% Notes
due 2016 (the 2016 Notes) and $400,000,000 aggregate principal amount of the Companys
4.625% Notes due 2021 (the 2021 Notes and, together with the 2014 Floating Rate Notes,
the 2014 Notes and the 2016 Notes, the Notes). Deutsche Bank Securities Inc., BNP
Paribas Securities Corp., UBS Securities LLC and Wells Fargo Securities, LLC have agreed to act as
representatives of the several Underwriters (in such capacity, the Representatives) in
connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of April 6, 2009 (the Base
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as
trustee (the Trustee). Certain terms of the Notes will be established pursuant to a
supplemental indenture (the Supplemental Indenture) to the Base Indenture (together with
the Base Indenture, the Indenture). The Notes will be issued in book-entry form in the
name of Cede & Co., as nominee of The Depository Trust Company (the Depositary), pursuant
to a Letter of Representations, to be dated on or before the Closing Date (as defined in Section 2
hereof) (the DTC Agreement), among the Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
Commission) a registration statement on Form S-3 (File No. 333-155041), which contains a
base prospectus dated March 14, 2011 (the Base Prospectus) to be used in connection with
the public offering and sale of debt securities, including the Notes, and under the Securities Act
of
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1933, as amended, and the rules and regulations promulgated thereunder (collectively, the
Securities Act), and the offering thereof from time to time in accordance with Rule 415
under the Securities Act. Such registration statement, including any post-effective amendment
thereto and the financial statements, exhibits and schedules thereto, in the form in which it
became effective under the Securities Act, including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
Registration Statement. The term Prospectus shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant
to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed
(the Execution Time) by the parties hereto. The term Preliminary Prospectus
shall mean any preliminary prospectus supplement relating to the Notes, together with the Base
Prospectus, that is first filed with the Commission pursuant to Rule 424(b) under the Securities
Act. Any reference herein to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to
5:00 P.M., New York City time, on March 28, 2011 (the Initial Sale Time). All references
in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System
(EDGAR).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the Exchange Act), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be,
after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
SECTION 1. Representations and Warranties of the Company.
The Company hereby represents and warrants to each Underwriter as of the date hereof, as of
the Initial Sale Time and as of the Closing Date (in each case, a Representation Date),
as follows:
a) Compliance with Registration Requirements. The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that
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purpose have been instituted or are pending or, to the Companys knowledge, are contemplated
or threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement and any post-effective
amendments thereto (i) complied and will comply in all material respects with the requirements of
the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder (the Trust Indenture Act), and (ii) did not and 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. At the date of the Prospectus
and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included
or will include an untrue statement of a material fact or omitted or will 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. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto or the Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with information furnished to the
Company in writing by any of the Underwriters through the Representatives expressly for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
through the Representatives consists of the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the Securities Act, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering
of the Notes will, at the time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T of the Commission (Regulation S-T).
b) Disclosure Package. The term Disclosure Package shall mean (i) the Preliminary
Prospectus dated March 28, 2011, (ii) each issuer free writing prospectus as defined in Rule 433
under the Securities Act (each, an Issuer Free Writing Prospectus), if any, identified in
Annex I hereto and (iii) any other free writing prospectus as defined in Rule 405 under the
Securities Act (each, a Free Writing Prospectus) that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.
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c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the
time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an 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.
d) Ineligible Issuer. (i) At the time of filing the Preliminary Prospectus and (ii) as of the
Execution Time, the Company is an ineligible issuer as defined in Rule 405 under the Securities
Act for purposes of determining whether the Company or any participant in the offering of the Notes
may use Free Writing Prospectuses in respect of such offering in accordance with the provisions of
Rules 164 and 433 under the Securities Act.
e) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date on which the Company notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with any information
contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company
has promptly notified or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished
by any Underwriter through the Representatives consists of the information described as such in
Section 8 hereof.
f) Distribution of Offering Material By the Company. The Company has not distributed and will
not distribute, prior to the later of the Closing Date and the completion of the Underwriters
distribution of the Notes, any offering material in connection with the offering and sale of the
Notes other than the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
permitted under the Securities Act and reviewed and consented to by the Representatives and
included in Annex I hereto, the Registration Statement or any other written communications
permitted under the Securities Act and reviewed and consented to by the Representatives
(collectively, Company Additional Written Communication). Each such Company Additional
Written Communication, when taken together with the Disclosure Package, did not, and at the Closing
Date will not, contain 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
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circumstances under which they were made, not misleading; provided that this representation
and warranty shall not apply to statements in or omissions from any such Company Additional Written
Communication made in reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through the Representatives expressly for use in such Company Additional
Written Communication, it being understood and agreed that the only such information furnished by
any Underwriter through the Representatives consists of the information described as such in
Section 8 hereof.
g) No Applicable Registration or Other Similar Rights. There are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
h) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
i) Authorization of the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act, the Base Indenture has been duly authorized, executed and delivered by the Company,
the Supplemental Indenture has been duly authorized by the Company and, at the Closing Date, will
have been duly executed and delivered by the Company and (assuming due authorization, execution and
delivery thereof by the Trustee) the Indenture, at the Closing Date, will constitute a valid and
binding agreement of the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles (regardless of whether enforcement is sought in a
proceeding at law or in equity).
j) Authorization of the Notes. The Notes to be purchased by the Underwriters from the Company
are substantially in the form contemplated by the Indenture, have been duly authorized for issuance
and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company, enforceable in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles (regardless of whether enforcement is
sought in a proceeding at law or in equity), and will be entitled to the benefits of the Indenture.
k) Description of the Notes and the Indenture. The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
l) Accuracy of Statements in Prospectus. The statements in each of the Preliminary Prospectus
and the Prospectus under the captions Description of Notes, Description of Debt
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Securities and Material United States Federal Income Tax Considerations, in each case
insofar as such statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the matters referred
to therein.
m) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package, (i)
neither the Company nor any of its subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, except for losses or
interferences that would not, individually or in the aggregate, have a Material Adverse Change (as
defined below) and (ii) there has been no change, or any development involving a prospective
change, that would reasonably be expected to result in a material adverse change in the financial
position, stockholders equity or results of operations, whether or not arising from transactions
in the ordinary course of business, of the Company and its subsidiaries, considered as a whole (any
such change is called a Material Adverse Change).
n) Independent Registered Public Accountants. PricewaterhouseCoopers LLP, who has expressed
its opinion with respect to the Companys audited financial statements for the fiscal years ended
January 30, 2009, January 29, 2010 and January 28, 2011 incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus is, to the best of the
Companys knowledge, an independent public accountant with respect to the Company as required by
the Securities Act and the Exchange Act and are, to the best of the Companys knowledge, an
independent registered public accounting firm with the Public Company Accounting Oversight Board.
o) Preparation of the Financial Statements. The financial statements together with the
related notes thereto incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries as of and at the dates indicated and the
results of their operations and the changes in their cash flows for the periods specified, in each
case on a consolidated basis. Such financial statements comply in all material respects as to form
with the accounting requirements of the Securities Act and have been prepared in conformity with
generally accepted accounting principles as applied in the United States applied on a consistent
basis throughout the periods involved, except as otherwise noted in the related notes thereto. No
other financial statements are required to be included in the Registration Statement. The selected
financial data, as applicable, included in the Preliminary Prospectus and the Prospectus present
fairly in all material respects the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements or, as applicable, unaudited financial
statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus.
p) Incorporation and Good Standing of the Company. The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the State of Delaware, and
has corporate power and authority to own or lease, as the case may be, and
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operate its properties and to conduct its business as described in the Disclosure Package and
the Prospectus and to enter into and perform its obligations under this Agreement. The Company is
duly qualified as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the aggregate, result in a Material
Adverse Change.
q) Incorporation and Good Standing of the Significant Subsidiaries. Each of the Companys
significant subsidiaries (as defined in Rule 1-02(10) of Regulation S-X under the Securities Act,
the Significant Subsidiaries) has been duly incorporated or formed and is validly
existing as a corporation or other legal entity, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or formation, and has corporate or other legal entity
power and authority to own or lease, as the case may be, and operate its properties and to conduct
its business as described in the Disclosure Package and the Prospectus, except where the failure to
be in good standing would not, individually or in the aggregate, result in a Material Adverse
Change. Each of the Significant Subsidiaries is duly qualified as a foreign corporation or other
legal entity to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except for such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a Material Adverse Change. Except
as otherwise disclosed in the Disclosure Package and the Prospectus, all of the issued and
outstanding shares of capital stock or other ownership interests of each of the Significant
Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and
(except for any qualifying shares owned by directors or members of any other governing body of a
subsidiary and, in the case of Significant Subsidiaries incorporated or formed under the laws of a
jurisdiction other than the United States or a state thereof, shares owned by foreign citizens or
other individuals to the extent required under the laws of such jurisdiction) are owned by the
Company, directly or through subsidiaries, free and clear of any material security interest,
mortgage, pledge, lien, encumbrance or claim. The Company does not have any subsidiary not listed
on Exhibit 21 to the Form 10-K which was required to be so listed when the Form 10-K was filed.
r) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
The Companys execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been
duly authorized by the Company by all necessary corporate action and will not result in any
violation or default (or, with the giving of notice or lapse of time or both, would be in default)
(Default) under the certificate of incorporation or by-laws of the Company or the
comparable organizational documents of any of its subsidiaries, (ii) will not conflict with or
constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other
party to, any indenture, mortgage, loan or credit agreement, deed of trust or other agreement,
obligation, condition, covenant or instrument to which the Company or any of
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its subsidiaries is a party or by which it or any of them is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, and (iii) will not result
in any violation of any statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or any of
its subsidiaries or any of its or their properties, except, with respect to clauses (ii) and (iii)
only, for such conflicts, breaches, Defaults, Debt Repayment Triggering Events, liens, charges,
encumbrances, requirements for consent or violations as would not, individually or in the
aggregate, result in a Material Adverse Change. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental or regulatory authority or
agency is required for the Companys execution, delivery and performance of this Agreement or
consummation of the transactions contemplated hereby, by the Disclosure Package or by the
Prospectus, except such as have been or will be obtained or made by the Company prior to or on the
Closing Date and except for such consents, approvals, authorizations or other orders of, or
registrations or filings required under or with, applicable securities authorities of U.S.
jurisdictions pursuant to applicable state securities or blue sky laws or the securities laws of
any jurisdiction outside the United States in which the Notes are offered for sale or from or with
the Financial Industry Regulatory Authority, Inc. (FINRA) or filings required to be made
after the Closing Date pursuant to the Companys periodic reporting obligations under the Exchange
Act. As used herein, a Debt Repayment Triggering Event means any event or condition
which gives, or with the giving of notice or lapse of time or both would give, the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such holders behalf)
issued by the Company the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
s) No Material Actions or Proceedings. Except as disclosed in the Prospectus and the
Disclosure Package, there are no legal or governmental actions, suits or proceedings pending or, to
the best of the Companys knowledge, threatened against or affecting the Company or any of its
subsidiaries or of which any property of the Company or any of its subsidiaries is subject which,
if determined adversely to the Company or any of its subsidiaries, would, individually or in the
aggregate, result in a Material Adverse Change.
t) Intellectual Property Rights. The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by them, and neither the
Company nor any or its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to, individually or in the aggregate, result in a Material Adverse Change.
u) Company Not an Investment Company. The Company is not, and after receipt of payment for
the Notes and the application of the proceeds thereof as contemplated under the caption Use of
Proceeds in the Preliminary Prospectus and the Prospectus will not be, required
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to register as an investment company within the meaning of the Investment Company Act of
1940, as amended.
v) No Unlawful Contributions or Other Payments. To the Companys knowledge, none of the
Company, any of its subsidiaries or any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by the Company or any of its subsidiaries of the FCPA (as defined
below), and, to the Companys knowledge, the Company and its subsidiaries have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
with the FCPA. FCPA means the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
w) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries
are and have been conducted at all times in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines
issued, administered or enforced by any governmental agency (collectively, the Money
Laundering Laws) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the Companys knowledge, threatened.
x) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the
Companys knowledge, any director, officer, agent, employee or affiliate of the Company or any of
the Companys subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Company will not
directly or indirectly use the proceeds of the sale of the Notes, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
y) Internal Controls and Procedures. The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that
complies with the requirements of the Exchange Act and has been designed by the Companys principal
executive officer and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles in the United States. Management of the Company assessed the Companys internal control
over financial reporting as of January 28, 2011, and concluded that the Companys internal control
over financial reporting was effective as of such date. The Company is not aware of any material
weaknesses in its internal control over financial reporting.
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z) No Material Weakness in Internal Controls. Since the date of the latest audited financial
statements of the Company filed with the Commission, there has been no change in the Companys
internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Companys internal control over financial reporting.
aa) Disclosure Controls and Procedures. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and procedures have been designed to
ensure that information required to be disclosed by the Company and its subsidiaries in the reports
that the Company files or submits under the Exchange Act is accumulated and communicated to the
Companys management; and such disclosure controls and procedures were effective as of January 28,
2011.
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Notes.
a) The Notes. The Company agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company (i) the aggregate principal amount of the 2014 Floating Rate Notes set forth opposite
their names on Schedule A at a purchase price of 99.750% of the principal amount of the 2014
Floating Rate Notes, plus accrued interest, if any, from March 31, 2011 to the Closing Date,
payable on the Closing Date, (ii) the aggregate principal amount of the 2014 Notes set forth
opposite their names on Schedule A at a purchase price of 99.718% of the principal amount of the
2014 Notes, plus accrued interest, if any, from March 31, 2011 to the Closing Date, payable on the
Closing Date, (iii) the aggregate principal amount of the 2016 Notes set forth opposite their names
on Schedule A at a purchase price of 99.549% of the principal amount of the 2016 Notes, plus
accrued interest, if any, from March 31, 2011 to the Closing Date, payable on the Closing Date, and
(iv) the aggregate principal amount of the 2021 Notes set forth opposite their names on Schedule A
at a purchase price of 99.091% of the principal amount of the 2021 Notes, plus accrued interest, if
any, from March 31, 2011 to the Closing Date, payable on the Closing Date.
b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased by
the Underwriters and payment therefor shall be made at the offices of Cravath, Swaine & Moore LLP,
825 Eighth Avenue, New York, New York, 10019 (or such other place as may be agreed to by the
Company and the Representatives) at 9:00 A.M., New York City time, on March 31, 2011, or such other
time and date as the Underwriters and the Company shall mutually agree (the time and date of such
closing are called the Closing Date).
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c) Public Offering of the Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own account and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
e) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for the Notes at the
Closing Date, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Notes shall be in such
denominations and registered in such names and denominations as the Representatives shall have
requested at least two full business days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a location in New York City, as the
Representatives may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Underwriters.
SECTION 3. Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b) hereof, will comply with the requirements of Rule 430B under the Securities Act, and
will promptly notify the Representatives, and confirm such notice in writing, of (i) the
effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective
amendment to the Registration Statement or the filing of any supplement or amendment to the
Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission
during the Prospectus Delivery Period (as defined in paragraph (b) of this Section 3), (iii) any
request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Preliminary Prospectus or the Prospectus or for additional information, and (iv)
the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the
Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424 under the Securities Act
and will take such steps as it deems necessary to
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ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for
filing pursuant to Rule 424 under the Securities Act were received for filing by the Commission
and, in the event that either such document was not so received, it will promptly file such
document. The Company will use its reasonable best efforts to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act (the Prospectus Delivery Period),
the Company will give the Representatives notice of its intention to file or prepare any amendment
to the Registration Statement, or any amendment, supplement or revision to the Disclosure Package
or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will
furnish the Representatives with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably object.
c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, electronic copies or photocopies
of the signed Registration Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed
to be incorporated by reference therein) and electronic copies or photocopies of all consents and
certificates of experts, and will also deliver to the Representatives, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. The Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event
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shall occur or condition shall exist as a result of which it is necessary, in the opinion of
the Underwriters or the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an 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 or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include an 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 existing at the Initial Sale Time or at the time the Disclosure Package or the
Prospectus is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in
the opinion of either the Company or the Underwriters, at any such time to amend the Registration
Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with
the requirements of any law, the Company will (1) notify the Representatives of any such event,
development or condition and (2) promptly prepare and file with the Commission, subject to Section
3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission
or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such
law, and the Company will furnish to the Underwriters, without charge, such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those U.S. jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company shall
not be required to qualify to transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its reasonable best efforts to
obtain the withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption Use of Proceeds in the Preliminary Prospectus and
the Prospectus.
h) Depositary. The Company will cooperate with the Underwriters and use its reasonable best
efforts to permit the Notes to be eligible for clearance and settlement through the facilities of
the Depositary.
i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall
file, on a timely basis, with the Commission and the NASDAQ Global Select Market all reports and
documents required to be filed by the Company under the Exchange Act.
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j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without the prior written consent
of the Representatives (which consent may be withheld at the sole discretion of the
Representatives), directly or indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Securities Act in respect of, any debt securities of the
Company similar to the Notes or securities exchangeable for or convertible into debt securities
similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
k) Final Term Sheet. The Company will prepare final term sheets containing only a description
of the Notes, in a form approved by the Underwriters and substantially in the form of Exhibits B-1,
B-2, B-3 and B-4 hereto and will file such term sheets pursuant to Rule 433(d) under the Securities
Act within the time required by such rule (such term sheets, the Final Term Sheet). Any
such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
l) Permitted Free Writing Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make,
any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the
Commission or retained by the Company pursuant to Rule 433 under the Securities Act; provided that
the prior written consent of the Representatives shall be deemed to have been given in respect of
any Issuer Free Writing Prospectuses attached as Annex I to this Agreement. Any such Free Writing
Prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred
to as a Permitted Free Writing Prospectus. The Company agrees that (i) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record
keeping. The Company consents to the use by any Underwriter of a Free Writing Prospectus that (a)
is not an Issuer Free Writing Prospectus, and (b) contains only (i) information describing the
preliminary terms of the Notes or their offering, or (ii) information that describes the final
terms of the Notes or their offering and that is included in the Final Term Sheet of the Company
contemplated in Section 3(k) hereof.
m) Registration Statement Renewal Deadline. If immediately prior to the third anniversary
(the Renewal Deadline) of the initial effective date of the Registration Statement, any
of the Notes remain unsold by the Underwriters, the Company will prior to the Renewal Deadline, if
it has not already done so and is eligible to do so, file a new shelf registration statement
relating to the Notes, in a form satisfactory to the Representatives, and will use its reasonable
best efforts to cause such registration statement to be declared effective within 60 days after the
Renewal Deadline. The Company will take all other action necessary or appropriate and consistent
with the Securities Act to permit the public offering and sale of the
14
Notes to continue as contemplated in the expired registration statement relating to the Notes.
References herein to the Registration Statement shall include such new shelf registration
statement, as the case may be.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes, (iii)
all fees and expenses of the Companys counsel, independent public or certified public accountants
and other advisors to the Company, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, each Company Additional Written Communication, the Preliminary Prospectus and
the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the
DTC Agreement and the Notes, (v) all filing fees, reasonable attorneys fees and expenses incurred
by the Company or the Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the Notes for offer and
sale under the state securities or blue sky laws, and, if requested by the Representatives,
preparing a Blue Sky Survey or memorandum, and any supplements thereto, advising the Underwriters
of such qualifications, registrations and exemptions, (vi) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if
any, by FINRA of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with
the rating agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel)
of the Company in connection with approval of the Notes by the Depositary for book-entry transfer,
(x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration
Statement, and (xi) all other fees, costs and expenses incurred in connection with the performance
of its obligations hereunder for which provision is not otherwise made in this Section. Except as
provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall be
subject to the accuracy of the representations and warranties on the part of the Company set forth
in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing Date
as though then made and to the timely performance by the Company of its covenants and other
obligations hereunder, and to each of the following additional conditions:
15
a) No Stop Orders. No stop order suspending the effectiveness of the Registration Statement
shall have been issued under the Securities Act, and no proceedings for that purpose shall have
been instituted or be pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of the Underwriters. The Preliminary Prospectus and the Prospectus shall have been filed with the
Commission in accordance with Rule 424(b) under the Securities Act.
b) Accountants Comfort Letter. On the date hereof, the Representatives shall have received
from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a
letter dated the date hereof addressed to the Company and the Underwriters, of a type reasonably
satisfactory to the Representatives with respect to the audited financial statements and certain
financial information contained and incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received
from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a
letter dated such date addressed to the Company and the Underwriters, of a type reasonably
satisfactory to the Representatives, to the effect that they reaffirm the statements made in the
letter furnished by them pursuant to paragraph (b) of this Section 5, except that the specified
date referred to therein for the carrying out of procedures shall be no more than three business
days prior to the Closing Date.
d) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) there shall not have been a Material Adverse Change, the effect of which is, in the
sole judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Notes as contemplated by the
Prospectus;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (b) of this Section 5 which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any nationally recognized
statistical rating organization as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
e) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have
received the favorable opinion and negative assurance statement of Hogan Lovells US
16
LLP, counsel for the Company, dated as of such Closing Date, substantially in the form of
Exhibit A-1.
f) Opinion of Internal Counsel. On the Closing Date, the Representatives shall have received
the favorable opinion of Janet B. Wright, Vice President-Corporate, Securities & Finance Counsel of
the Company, dated as of such Closing Date, substantially in the form of Exhibit A-2.
g) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the favorable opinion of Cravath, Swaine & Moore LLP, counsel for the Underwriters,
dated as of such Closing Date, with respect to such matters as may be reasonably requested by the
Underwriters.
h) Officers Certificate. On the Closing Date, the Representatives shall have received a
written certificate executed by the Chairman of the Board, the Chief Executive Officer, or a Senior
Vice President, and the Chief Financial Officer, the Chief Accounting Officer, or the Treasurer of
the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission;
(ii) the representations and warranties of the Company set forth in Section 1 of this
Agreement are true and correct with the same force and effect as though expressly made on
and as of such Closing Date; and
(iii) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
i) Additional Documents. On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that this sentence and Sections 4, 6, 8, 9 and 18 hereof shall
at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters Expenses. If this Agreement is terminated by the
Representatives pursuant to Section 5 or 11 hereof, or if the sale to the Underwriters of the Notes
on the Closing Date is not consummated because of any refusal,
17
inability or failure on the part of the Company to perform any agreement herein or to comply
with any provision hereof, the Company agrees to reimburse the Representatives and the other
Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by
the Representatives and the Underwriters in connection with the proposed purchase and the offering
and sale of the Notes, including but not limited to reasonable fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Effectiveness of this Agreement. This Agreement shall not become effective until
the execution of this Agreement by the parties hereto.
SECTION 8. Indemnification.
a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its directors, officers, employees and agents, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director,
officer, employee, agent or controlling person may become subject, under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, any Company Additional Written Communication, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to reimburse each Underwriter and
each such director, officer, employee, agent and controlling person for any and all expenses
(including the reasonable fees and disbursements of counsel chosen by the Representatives) as such
expenses are reasonably incurred by such Underwriter or such director, officer, employee, agent or
controlling person in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement, any Issuer Free Writing Prospectus, any Company Additional
Written Communication, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
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b) Indemnification of the Company, its Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange Act, or other Federal
or state statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such Underwriter), insofar
as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any amendment thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing Prospectus, any Company
Additional Written Communication, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Issuer Free Writing Prospectus, any Company Additional Written Communication, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and to reimburse the Company, or any such director,
officer or controlling person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by the Company), as such expenses are reasonably incurred by the
Company, or any such director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer
Free Writing Prospectus, any Company Additional Written Communication, the Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the
third and seventh paragraphs under the caption Underwriting in the Preliminary Prospectus and the
Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any
liabilities that each Underwriter may otherwise have.
c) Notifications and Other Indemnification Procedures. 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 an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such
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indemnified party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written notice delivered to the
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, such indemnified party shall have the right to employ its own
counsel in any such action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such
counsel has been specifically authorized in writing by the indemnifying party; (ii) the
indemnifying party has failed promptly to assume the defense and employ counsel reasonably
satisfactory to the indemnified party; or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party and the indemnifying party or any affiliate
of the indemnifying party, and such indemnified party shall have reasonably concluded that either
(x) there may be one or more legal defenses available to it which are different from or additional
to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a
conflict may exist between such indemnified party and the indemnifying party or such affiliate of
the indemnifying party (it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to a single firm of
local counsel) for all such indemnified parties, which firm shall be designated in writing by the
Representatives in the case of paragraph (a) of this Section 8, and by the Company in the case of
paragraph (b) of this Section 8, and that all such reasonable fees and expenses shall be reimbursed
as they are incurred). Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying partys election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding sentence, in which
case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
d) Settlements. The indemnifying party under this Section 8 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 against any loss, claim, damage, liability or expense by reason of such
settlement or judgment in accordance with this Section 8. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
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SECTION 9. Contribution. If the indemnification provided for in Section 8 hereof is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (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 Notes
pursuant to this Agreement 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
the Underwriters, on the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, 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 Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discount received by the Underwriters, in each case as set
forth on the front cover page of the Prospectus, bear to the aggregate initial public offering
price of the Notes as set forth on such cover. 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 any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company, on the one hand,
or the Underwriters, on the other hand, and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c) hereof, any reasonable legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 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 which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. 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 Underwriters obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
21
Securities Act and the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company with the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
SECTION 10. Default of One or More of the Several Underwriters. If, on the Closing Date, any
one or more of the several Underwriters shall fail or refuse to purchase Notes that it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10%
of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters
shall be obligated, severally, in the proportion that the aggregate principal amounts of such Notes
set forth opposite their respective names on Schedule A bear to the aggregate principal amount of
such Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such
Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of
Notes to be purchased on such date, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Notes are not made within 48 hours after such default, this
Agreement shall terminate without liability of any party to any other party except that the
provisions of Sections 4, 6, 8, 9 and 18 hereof shall at all times be effective and shall survive
such termination. In any such case, either the Representatives 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, to the Registration Statement, any Issuer Free Writing Prospectus, any Company
Additional Written Communication, the Preliminary Prospectus or the Prospectus or any other
documents or arrangements may be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
SECTION 11. Termination of this Agreement. Prior to the Closing Date, this Agreement may be
terminated by the Representatives by notice given to the Company if at any time (i) trading or
quotation in any of the Companys securities shall have been suspended or limited by the Commission
or the NASDAQ Global Select Market, or trading in securities generally on any of the NASDAQ Stock
Market, the New York Stock Exchange or the NASDAQ Global Select Market shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on any of such stock
exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by
any of Federal or New York authorities; (iii) there shall have occurred any outbreak or escalation
of national or international hostilities or any crisis or calamity involving the United States, or
any change in the
22
United States or international financial markets, or any substantial change or development
involving a prospective substantial change in United States or international political, financial
or economic conditions, as in the judgment of the Representatives is material and adverse and makes
it impracticable or inadvisable to market the Notes in the manner and on the terms described in the
Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; or (iv)
there shall have occurred a material disruption in commercial banking or securities settlement or
clearance services. Any termination pursuant to this Section 11 shall be without liability of any
party to any other party except as provided in Sections 4 and 6 hereof, and provided further that
Sections 4, 6, 8, 9 and 18 hereof shall survive such termination and remain in full force and
effect.
SECTION 12. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the purchase
and sale of the Notes pursuant to this Agreement, including the determination of the public
offering price of the Notes and any related discounts and commissions, is an arms-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction,
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Company and that
the several Underwriters have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject matter hereof. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
SECTION 13. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company, of its officers and of
the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative
and in full force and effect, regardless of any (A) investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or
any person controlling the Underwriter, the
23
Company, the officers or employees of the Company, or any person controlling the Company, as
the case may be, or (B) acceptance of the Notes and payment for them hereunder and (ii) will
survive delivery of and payment for the Notes sold hereunder and any termination of this Agreement.
SECTION 14. Miscellaneous. In accordance with the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), the underwriters are required to obtain,
verify and record information that identifies their respective clients, including the Company,
which information may include the name and address of their respective clients, as well as other
information that will allow the underwriters to properly identify their respective clients.
SECTION 15. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Deutsche Bank Securities Inc.
BNP Paribas Securities Corp.
UBS Securities LLC
Wells Fargo Securities, LLC
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
Facsimile: 212-797-2202
Attention: Debt Capital Markets Syndicate
BNP Paribas Securities Corp.
UBS Securities LLC
Wells Fargo Securities, LLC
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
Facsimile: 212-797-2202
Attention: Debt Capital Markets Syndicate
with a copy to:
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
Facsimile: 212-474-3700
Attention: LizabethAnn R. Eisen, Esq.
825 Eighth Avenue
New York, NY 10019
Facsimile: 212-474-3700
Attention: LizabethAnn R. Eisen, Esq.
If to the Company:
Dell Inc.
One Dell Way
Round Rock, TX 78682
Facsimile: 512-283-0544
Attention: Assistant Secretary
One Dell Way
Round Rock, TX 78682
Facsimile: 512-283-0544
Attention: Assistant Secretary
24
with a copy to:
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Facsimile: 202-637-5910
Attention: Richard J. Parrino, Esq.
David P. Slotkin, Esq.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Facsimile: 202-637-5910
Attention: Richard J. Parrino, Esq.
David P. Slotkin, Esq.
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
SECTION 16. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9 hereof, and in each case their respective successors, and no other person will
have any right or obligation hereunder. The term successors shall not include any purchaser of
the Notes as such from any of the Underwriters merely by reason of such purchase.
SECTION 17. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 18. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN THAT STATE.
SECTION 19. General Provisions. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 hereof and the contribution
provisions of Section 9 hereof, and is fully informed regarding such provisions. Each of the
parties hereto further acknowledges that the provisions of Sections 8 and 9 hereof fairly allocate
the risks in light of the ability of the parties to investigate the Company, its affairs
25
and its business in order to assure that adequate disclosure has been made in the Registration
Statement, the Disclosure Package and the Prospectus (and any amendments and supplements
thereto), as required by the Securities Act and the Exchange Act.
26
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, Dell Inc. |
||||
By: | /s/ Janet B. Wright | |||
Name: | Janet B. Wright | |||
Title: | Assistant Secretary and Vice President-Corporate, Securities & Finance Counsel |
|||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
Deutsche Bank Securities Inc.
BNP Paribas Securities Corp.
UBS Securities LLC
Wells Fargo Securities, LLC
BNP Paribas Securities Corp.
UBS Securities LLC
Wells Fargo Securities, LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
several Underwriters named in
the attached Schedule A.
By: Deutsche Bank Securities Inc. | ||||
By: | /s/ Marc Fratepietro | |||
Name: | Marc Fratepietro | |||
Title: | Managing Director | |||
By: | /s/ John McCabe | |||
Name: | John McCabe | |||
Title: | Director | |||
By: BNP Paribas Securities Corp. | ||||
By: | /s/ Paul Lange | |||
Name: | Paul Lange | |||
Title: | Managing Director Debt Capital Markets |
|||
By: UBS Securities LLC | ||||
By: | /s/ Christian Stewart | |||
Name: | Christian Stewart | |||
Title: | Managing Director UBS Investment Bank | |||
By: | /s/ John Hagens | |||
Name: | John Hagens | |||
Title: | Associate Director UBS Securities LLC |
|||
By: Wells Fargo Securities, LLC | ||||
By: | /s/ Carolyn Hurley | |||
Name: | Carolyn Hurley | |||
Title: | Director | |||
SCHEDULE A
Aggregate Principal | Aggregate Principal | Aggregate Principal | Aggregate Principal | |||||||||||||
Amount of Floating | Amount of 2.100% | Amount of 3.100% | Amount of 4.625% | |||||||||||||
Rate Notes due 2014 | Notes due 2014 to | Notes due 2016 to | Notes due 2021 to | |||||||||||||
Underwriters | to be Purchased | be Purchased | be Purchased | be Purchased | ||||||||||||
BNP Paribas Securities
Corp. |
$ | 60,000,000 | $ | 80,000,000 | $ | 80,000,000 | $ | 80,000,000 | ||||||||
Deutsche Bank Securities
Inc. |
60,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | ||||||||||||
UBS Securities LLC |
60,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | ||||||||||||
Wells Fargo Securities, LLC |
60,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | ||||||||||||
Citigroup Global Markets
Inc. |
15,000,000 | 20,000,000 | 20,000,000 | 20,000,000 | ||||||||||||
Goldman, Sachs & Co. |
15,000,000 | 20,000,000 | 20,000,000 | 20,000,000 | ||||||||||||
J.P. Morgan Securities LLC |
15,000,000 | 20,000,000 | 20,000,000 | 20,000,000 | ||||||||||||
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated |
15,000,000 | 20,000,000 | 20,000,000 | 20,000,000 | ||||||||||||
Total |
$ | 300,000,000 | $ | 400,000,000 | $ | 400,000,000 | $ | 400,000,000 |
Sch-1
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheets dated March 28, 2011 relating to the Notes
Annex-1
EXHIBIT A-1
Form of Issuers Counsel Opinion
Form of Issuers Counsel Opinion
Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the
underwriting agreement, dated March 28, 2011 (the Underwriting Agreement) among Dell Inc, a
Delaware corporation (the Company), and Deutsche Bank Securities Inc., BNP Paribas Securities
Corp., UBS Securities LLC and Wells Fargo Securities, LLC as representatives of the several
underwriters listed on Schedule A of the Underwriting Agreement.
(a) The Company is validly existing as a corporation and is in good standing as of the date
hereof under the Corporation Act.
(b) The Company has the corporate power to execute, deliver and perform its obligations under
the Indenture and the Underwriting Agreement and to own, lease and operate its current properties
and to conduct its business as described in the Disclosure Package and the Prospectus.
(c) The Notes (i) have been duly authorized by the Company and (ii) when executed,
authenticated, issued and delivered in the manner provided for in the Indenture against payment
therefor in accordance with the Underwriting Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms.
(d) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(e) The Indenture (i) has been duly qualified under the Trust Indenture Act, (ii) has been
duly authorized, executed and delivered by the Company and (iii) constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms.
(f) The Notes and the Indenture conform as to legal matters in all material respects to the
descriptions thereof set forth in the Disclosure Package and the Prospectus under the captions
Description of Debt Securities and Description of Notes.
(g) The information in the Disclosure Package and the Prospectus under the captions
Description of Debt Securities, Description of Notes and Material United States Federal Income
Tax Considerations, to the extent that such information constitutes matters of law or legal
conclusions, has been reviewed by us and is correct in all material respects.
(h) Based solely upon our review of the information regarding the Company provided through the
EDGAR system on the website of the Commission, the Registration Statement has become effective
under the 1933 Act, and, based solely upon telephone communications between an attorney of this
firm and a member of the staff of the Commission, no stop order suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the Prospectus has been issued and no
proceedings for that purpose have been instituted or are threatened by the Commission. The
required filing of the Prospectus
A-1
pursuant to Rule 424(b) promulgated pursuant to the 1933 Act has
been made in the manner and within the time period required by Rule 424(b).
(i) At the most recent time the Registration Statement became effective and as of the date of
the Underwriting Agreement, the Registration Statement and, as of its date, the Prospectus (except
for the financial statements and supporting schedules included therein and the Statement of
Eligibility on Form T-1 of the Trustee, as to which we express no opinion), excluding the documents
incorporated by reference therein, complied as to form in all material respects with the
requirements of the Trust Indenture Act and the requirements of the 1933 Act. The Disclosure
Package, as of the Initial Sale Time, complied as to form in all material respects with the
requirements of the 1933 Act.
(j) The documents incorporated by reference in the Registration Statement, the Preliminary
Prospectus, the Disclosure Package and the Prospectus, at the time they were filed with the
Commission, appear on their face to comply as to form in all material respects with the
requirements of the Exchange Act.
(k) The execution, delivery and performance on the date hereof by the Company of the
Underwriting Agreement, the Indenture and the Notes do not (i) violate the Corporation Act, the
Certificate of Incorporation or the Bylaws, (ii) violate any provision of Applicable Federal Law or
any provision of Applicable State Law, or (iii) breach or constitute a default under any indenture,
mortgage, deed of trust, loan agreement, instrument or other agreement or contract of the Company
that is included as an exhibit to the Companys Annual Report on Form 10-K for the fiscal year
ended January 28, 2011 (except that we express no opinion with respect to any matters that would
require a mathematical calculation or a financial or accounting determination).
(l) No authorization, order, approval or consent of, or registration or filing with, any
federal governmental agency or any New York governmental agency is required to be obtained or made
by the Company under Applicable Federal Law or Applicable State Law or under the Corporation Act in
connection with the execution, delivery and performance on the date hereof by the Company of the
Underwriting Agreement, the Indenture and the Notes.
(m) The Company is not an investment company within the meaning of the Investment Company
Act of 1940, as amended.
During the course of our professional engagement, we reviewed the Registration Statement on Form
S-3 (No. 333-155041) (including the documents incorporated therein by reference, the Registration
Statement), the documents listed on Schedule A hereto (those documents listed on
Schedule A, including the documents incorporated therein by reference, the Pricing
Disclosure Package), and the final prospectus supplement, dated March 28, 2011, as filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended (together with the
Base Prospectus and the documents incorporated therein by reference, the Prospectus), and
participated in conferences with officers and other representatives of the Company, with
representatives of the independent registered public accounting firm of the Company and with you
and your representatives at which the contents of the Registration Statement, the Pricing
Disclosure Package, and the Prospectus and related matters were
A-2
discussed. The purpose of our
professional engagement was not to establish or confirm factual matters set forth in the
Registration Statement, the Pricing Disclosure Package, and the Prospectus, and we have not
undertaken any obligation to verify independently any of those factual matters. Accordingly, we do
not assume any responsibility for the accuracy, completeness, or fairness of the statements in the
Registration Statement, the Pricing Disclosure Package, and the Prospectus, other than as set forth
in paragraphs (f) and (g) of our opinion letter to you dated the date hereof. Moreover, many of
the determinations required to be made in the preparation of the Registration Statement, the
Pricing Disclosure Package, and the Prospectus involve matters of a non-legal nature.
Subject to the foregoing, we confirm to you that, on the basis of the information we gained in
the course of performing the services referred to above, no facts have come to our attention that
cause us to believe that:
(i) the Registration Statement, at the most recent time it became effective or as of the date
of the Underwriting Agreement, 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;
(ii) the Prospectus, as of its date or as of the date hereof, contained or contains an untrue
statement of a material fact or omitted 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; or
(iii) the Pricing Disclosure Package, as of 5:00 P.M. (New York City time) on March 28, 2011
(which you have informed us is a time prior to the time of the first sale of the Notes by any
Underwriter), contained an untrue statement of a material fact or omitted 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 that, in making the foregoing statements, we do not express any
belief with respect to the financial statements and supporting schedules and other financial or
accounting information contained or incorporated by reference in or omitted from the Registration
Statement, the Pricing Disclosure Package, or the Prospectus, nor do we express any belief with
respect to the Companys assessments of or reports on the effectiveness of internal control over
financial reporting.
A-3
EXHIBIT A-2
Form of Internal Counsel Legal Opinion
Form of Internal Counsel Legal Opinion
Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the
Underwriting Agreement, dated March 28, 2011 among Dell Inc, a Delaware corporation (the
Company), and Deutsche Bank Securities Inc., BNP Paribas Securities Corp., UBS Securities LLC and
Wells Fargo Securities, LLC, as representatives of the several underwriters listed on Schedule A of
the Underwriting Agreement.
(i) The Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the law of the State of Texas.
(ii) To my knowledge and other than as set forth in the Prospectus and the Disclosure Package,
there are no legal or governmental actions, suits, proceedings or investigations pending or overtly
threatened against the Company or any of its subsidiaries which would reasonably be expected to
have a Material Adverse Change.
(iii) The issuance and sale of the Notes and the compliance by the Company with the provisions
of the Notes, the Indenture and the Underwriting Agreement and the consummation of the transactions
contemplated therein will not result in any violation of any judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other authority
known to me directed to the Company or any of its subsidiaries or any of its or their properties in
a proceeding to which any of them or their property is a party, except for any such violation that
would not, individually or in the aggregate, have a Material Adverse Change.
A-4
EXHIBIT B-1
Dell Inc.
Pricing Term Sheet
March 28, 2011
In addition to the securities described in the preliminary prospectus supplement, the Issuer
also is issuing a series of Floating Rate Notes due 2014. Certain of the terms of the 2014 Floating
Rate Notes are described below. In addition to the terms described below, the following sections
of the preliminary prospectus supplement relate to the description of the 2014 Floating Rate Notes:
the cover page; the introductory paragraphs of the section entitled Description of Notes; the
subsections of the Description of Notes entitled General, Ranking, Issuance of
Additional Notes, Covenants, Events of Default, Reports, Satisfaction and
Discharge; Defeasance and Covenant Defeasance, Book Entry Delivery and Settlement, Governing
Law, and Regarding the Trustee; the provisions of the section entitled SummaryThe Offering
which correspond to the foregoing subsections; and the section of the base prospectus entitled
Description of Debt Securities.
Issuer:
|
Dell Inc. | |||
Size:
|
$300,000,000 | |||
Maturity:
|
April 1, 2014 | |||
Coupon (Interest Rate):
|
3-month LIBOR + 60 bps | |||
Anticipated Security Ratings:
|
Intentionally omitted | |||
Interest Payment and Reset Dates:
|
January 1, April 1, July 1 and October 1, first Interest Payment Date on July 1, 2011 | |||
Redemption Provision:
|
May not be redeemed before maturity | |||
Price to Public:
|
100% | |||
Minimum Denominations / Multiples:
|
$2,000 / multiples of $1,000 in excess thereof | |||
Proceeds, before expenses, to
Dell from the offering of the notes contemplated by this final
term sheet:
|
$299,250,000 | |||
Settlement Date:
|
March 31, 2011 | |||
CUSIP/ISIN:
|
24702RAR2 / US24702RAR21 | |||
Joint Book-Running Managers:
|
BNP Paribas Securities Corp. Deutsche Bank Securities Inc. UBS Securities LLC Wells Fargo Securities, LLC |
|||
Co-Managers:
|
Citigroup Global Markets Inc. Goldman, Sachs & Co. J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
B-1
The 2014 Floating Rate Notes will bear interest for each interest period at a rate
determined by the calculation agent. The Bank of New York Mellon Trust Company, N.A. will be the
calculation agent until such time, if any, as we appoint a successor calculation agent. The
interest rate on the 2014 Floating Rate Notes for a particular interest period will be a per annum
rate equal to three-month USD LIBOR as determined on the interest determination date plus 0.60%.
The interest determination date for an interest period will be the second London business day
preceding the first day of such interest period. Promptly upon determination, the calculation agent
will inform the Trustee and us of the interest rate for the next interest period. Except in the
case of manifest error, the determination of the interest rate by the calculation agent will be
binding and conclusive on the holders of the 2014 Floating Rate Notes, the Trustee and us. A London
business day is a day on which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
Interest will be payable quarterly in arrears on January 1, April 1, July 1 and October 1 of
each year commencing on July 1, 2011 to the person in whose name the notes (or any predecessor
notes) are registered at the close of business on the business day immediately preceding such
interest payment date. Interest on the 2014 Floating Rate Notes will accrue from and including
March 31, 2011, to, but excluding, the first interest payment date and then from and including the
immediately preceding interest payment date to which interest has been paid or duly provided for
to, but excluding, the next interest payment date or maturity date, as the case may be. We refer to
each of these periods as an interest period. The amount of accrued interest that we will pay for
any interest period will be calculated by multiplying the face amount of the 2014 Floating Rate
Notes then outstanding by an accrued interest factor. The accrued interest factor will be computed
by adding the interest factor calculated for each day from March 31, 2011, or from the last
interest payment date, to the date for which accrued interest is being calculated. The interest
factor for each day will be computed by dividing the interest rate applicable to that day by 360.
If an interest payment date for the 2014 Floating Rate Notes falls on a day that is not a business
day, the interest payment date will be postponed to the next succeeding business day unless such
next succeeding business day would be in the following month, in which case the interest payment
date will be the immediately preceding business day.
On any interest determination date, LIBOR will be equal to the offered rate for deposits in
U.S. dollars having an index maturity of three months, in amounts of at least $1,000,000, as such
rate appears on Reuters Page LIBOR01 at approximately 11:00 a.m., London time, on such interest
determination date. If on an interest determination date, such rate does not appear on Reuters
Page LIBOR01 at approximately 11:00 a.m., London time, or if Reuters Page LIBOR01 is not
available on such date, the calculation agent will obtain such rate from Bloomberg L.P.s page
BBAM.
If no offered rate appears on Reuters Page LIBOR01 or Bloomberg L.P.s page BBAM on an
interest determination date at approximately 11:00 a.m., London time, then the calculation agent
(after consultation with us) will select four major banks in the London interbank market and will
request each of their principal London offices to provide a quotation of the rate at which
three-month deposits in U.S. dollars in amounts of at least $1,000,000 are offered by it to prime
banks in the London interbank market, on that date and at that time, that is representative of
single transactions at that time. If at least two quotations are provided, LIBOR will be the
arithmetic average of the quotations provided. Otherwise, the calculation agent will select three
major banks in New York City and will request each of them to provide a quotation of the rate
offered by them at approximately 11:00 a.m., New York City time, on the interest determination date
for loans in U.S. dollars to leading European banks having an index maturity of three months for
the applicable interest period in an amount of at least $1,000,000 that is representative of single
transactions at that time. If three quotations are provided, LIBOR will be the arithmetic average
of the quotations provided. Otherwise, the rate of LIBOR for the next interest period will be set
equal to the rate of LIBOR for the then current interest period.
B-2
Upon request from any holder of 2014 Floating Rate Notes, the calculation agent will provide
the interest rate in effect for the 2014 Floating Rate Notes for the current interest period and,
if it has been determined, the interest rate to be in effect for the next interest period.
All percentages resulting from any calculation of the interest rate on the 2014 Floating Rate
Notes will be rounded to the nearest one hundred-thousandth of a percentage point with five
one-millionths of a percentage point rounded upwards (e.g., 9.876545% (or .09876545) would be
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from such
calculation on the 2014 Floating Rate Notes will be rounded to the nearest cent (with one-half cent
being rounded upward). Each calculation of the interest rate on the 2014 Floating Rate Notes by the
calculation agent will (in absence of manifest error) be final and binding on the holders and us.
The interest rate on the 2014 Floating Rate Notes will in no event be higher than the maximum rate
permitted by New York law as the same may be modified by United States law of general application.
A securities rating is not a recommendation to buy, sell or hold securities and may be subject
to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC web site at www.sec.gov. Alternatively, any of the Representatives can arrange to
send you the prospectus if you request it by calling:
BNP Paribas Securities Corp. toll free at 1-800-854-5674
Deutsche Bank Securities Inc. toll free at 1-800-503-4611
UBS Securities LLC toll-free at 1-877-827-6444 (ext. 561-3884)
Wells Fargo Securities, LLC toll-free at 1-800-326-5897
B-3
EXHIBIT B-2
Dell Inc.
Pricing Term Sheet
March 28, 2011
Issuer:
|
Dell Inc. | |||
Size:
|
$ | 400,000,000 | ||
Maturity:
|
April 1, 2014 | |||
Coupon (Interest Rate):
|
2.100% | |||
Yield to Maturity:
|
2.111% | |||
Spread to Benchmark Treasury:
|
T + 85 bps | |||
Benchmark Treasury:
|
1.250% due March 15, 2014 | |||
Benchmark Treasury Price and Yield:
|
Price of 99-31; Yield of 1.261% | |||
Anticipated Security Ratings:
|
Intentionally omitted | |||
Interest Payment Dates:
|
April 1 and October 1, first Interest Payment Date October 1, 2011 | |||
Record Dates:
|
March 15 and September 15 | |||
Redemption Provision:
|
Make-whole T + 12.5 bps | |||
Price to Public:
|
99.968% | |||
Minimum Denominations / Multiples:
|
$2,000 / multiples of $1,000 in excess thereof | |||
Proceeds, before expenses, to Dell
from the offering of the notes
contemplated by this final term
sheet:
|
$ | 398,872,000 | ||
Settlement Date:
|
March 31, 2011 | |||
CUSIP/ISIN:
|
24702RAN1 / US24702RAN17 | |||
Joint Book-Running Managers:
|
BNP Paribas Securities Corp. Deutsche Bank Securities Inc. UBS Securities LLC Wells Fargo Securities, LLC |
|||
Co-Managers:
|
Citigroup Global Markets Inc. Goldman, Sachs & Co. J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
B-4
A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC web site at www.sec.gov. Alternatively, any of the Representatives can arrange to
send you the prospectus if you request it by calling:
BNP Paribas Securities Corp. toll free at 1-800-854-5674
Deutsche Bank Securities Inc. toll free at 1-800-503-4611
UBS Securities LLC toll-free at 1-877-827-6444 (ext. 561-3884)
Wells Fargo Securities, LLC toll-free at 1-800-326-5897
B-5
EXHIBIT B-3
Dell Inc.
Pricing Term Sheet
March 28, 2011
Issuer:
|
Dell Inc. | |||
Size:
|
$ | 400,000,000 | ||
Maturity:
|
April 1, 2016 | |||
Coupon (Interest Rate):
|
3.100% | |||
Yield to Maturity:
|
3.122% | |||
Spread to Benchmark Treasury:
|
T + 95 bps | |||
Benchmark Treasury:
|
2.125% due February 29, 2016 | |||
Benchmark Treasury Price and Yield:
|
Price of 99-25; Yield of 2.172% | |||
Anticipated Security Ratings:
|
Intentionally omitted | |||
Interest Payment Dates:
|
April 1 and October 1, first Interest Payment Date October 1, 2011 | |||
Record Dates:
|
March 15 and September 15 | |||
Redemption Provision:
|
Make-whole T + 15 bps | |||
Price to Public:
|
99.899% | |||
Minimum Denominations / Multiples:
|
$2,000 / multiples of $1,000 in excess thereof | |||
Proceeds, before expenses, to Dell
from the offering of the notes
contemplated by this final term
sheet:
|
$ | 398,196,000 | ||
Settlement Date:
|
March 31, 2011 | |||
CUSIP/ISIN:
|
24702RAP6 / US24702RAP64 | |||
Joint Book-Running Managers:
|
BNP Paribas Securities Corp. Deutsche Bank Securities Inc. UBS Securities LLC Wells Fargo Securities, LLC |
|||
Co-Managers:
|
Citigroup Global Markets Inc. Goldman, Sachs & Co. J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
B-6
A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC web site at www.sec.gov. Alternatively, any of the Representatives can arrange to
send you the prospectus if you request it by calling:
BNP Paribas Securities Corp. toll free at 1-800-854-5674
Deutsche Bank Securities Inc. toll free at 1-800-503-4611
UBS Securities LLC toll-free at 1-877-827-6444 (ext. 561-3884)
Wells Fargo Securities, LLC toll-free at 1-800-326-5897
B-7
EXHIBIT B-4
Dell Inc.
Pricing Term Sheet
March 28, 2011
Issuer:
|
Dell Inc. | |||
Size:
|
$ | 400,000,000 | ||
Maturity:
|
April 1, 2021 | |||
Coupon (Interest Rate):
|
4.625% | |||
Yield to Maturity:
|
4.683% | |||
Spread to Benchmark Treasury:
|
T + 125 bps | |||
Benchmark Treasury:
|
3.625% due February 15, 2021 | |||
Benchmark Treasury Price and Yield:
|
Price of 101-19; Yield of 3.433% | |||
Anticipated Security Ratings:
|
Intentionally omitted | |||
Interest Payment Dates:
|
April 1 and October 1, first Interest Payment Date October 1, 2011 | |||
Record Dates:
|
March 15 and September 15 | |||
Redemption Provision:
|
Make-whole T + 20 bps | |||
Price to Public:
|
99.541% | |||
Minimum Denominations / Multiples:
|
$2,000 / multiples of $1,000 in excess thereof | |||
Proceeds, before expenses, to Dell
from the offering of the notes
contemplated by this final term
sheet:
|
$ | 396,364,000 | ||
Settlement Date:
|
March 31, 2011 | |||
CUSIP/ISIN:
|
24702RAQ4 / US24702RAQ48 | |||
Joint Book-Running Managers:
|
BNP Paribas Securities Corp. Deutsche Bank Securities Inc. UBS Securities LLC Wells Fargo Securities, LLC |
|||
Co-Managers:
|
Citigroup Global Markets Inc. Goldman, Sachs & Co. J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
B-8
A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC web site at www.sec.gov. Alternatively, any of the Representatives can arrange to
send you the prospectus if you request it by calling:
BNP Paribas Securities Corp. toll free at 1-800-854-5674
Deutsche Bank Securities Inc. toll free at 1-800-503-4611
UBS Securities LLC toll-free at 1-877-827-6444 (ext. 561-3884)
Wells Fargo Securities, LLC toll-free at 1-800-326-5897
B-9