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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): February 17, 2000
Electronic Data Systems Corporation
(Exact name of registrant as specified in its charter)
Delaware 01-11779 75-2548221
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
5400 Legacy Drive
Plano, Texas 75024-3105
(Address of Principal Executive Offices,
Including Zip Code)
Registrant's telephone number, including area code: (972) 604-6000
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Item 5. Other Events.
On February 17, 2000, the Registrant entered into the Purchase Agreement
attached as Exhibit 99(a) hereto with the General Motors Hourly Rate Employees
Pension Plan and the Underwriters identified therein in connection with the
offering by the General Motors Hourly-Rate Employees Pension Plan of 15,000,000
shares of the Registrant's Common Stock. Also on February 17, 2000, that Pension
Plan and the Underwriters entered into the Pricing Agreement attached as Exhibit
A to the Purchase Agreement.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit
Number Description of Document
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99(a) Purchase Agreement dated February 17, 2000 among the Registrant,
the General Motors Hourly Rate Employees Pension Plan and Morgan
Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Goldman, Sachs & Co. and Salomon Smith Barney Inc.
(the "Underwriters"), together with the Pricing Agreement dated
February 17, 2000, between the General Motors Hourly Rate
Employees Pension Plan and the Underwriters.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ELECTRONIC DATA SYSTEMS
CORPORATION
By: /s/ D. GILBERT FRIEDLANDER
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Name: D. Gilbert Friedlander
Title: Senior Vice President
February 17, 2000
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EXHIBIT 99A
15,000,000 Shares
ELECTRONIC DATA SYSTEMS CORPORATION
(a Delaware corporation)
Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
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February 17, 2000
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Electronic Data Systems Corporation, a Delaware corporation (the
"Company"), and United States Trust Company of New York (the "Trustee"), as
trustee of the General Motors Special Hourly Employees Pension Trust established
under the General Motors Hourly-Rate Employees Pension Plan (the "Hourly Plan"),
for the account and on behalf of the Hourly Plan (the "Selling Stockholder"),
confirm their respective agreements with Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman,
Sachs & Co. and Salomon Smith Barney Inc. (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Article VIII), with respect to the sale by the Selling Stockholder
of the aggregate number of shares of Common Stock, par value $0.01 per share, of
the Company ("Common Stock"), and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of shares of Common Stock
set forth opposite their names in Schedule A to the Pricing Agreement (as
hereinafter defined) (the "Initial Securities"), and with respect to the grant
by the Selling Stockholder to the Underwriters, acting severally and not
jointly, of the option described in Article I hereto to purchase all or any part
of the respective number of additional shares of Common Stock set forth opposite
their names in Schedule A to the Pricing Agreement (the "Option Securities") to
cover over-allotments, if any, in each case except as may otherwise be provided
in the Pricing Agreement. The aggregate number of Initial Securities and all or
any part of the Option Securities are collectively hereinafter called the
"Securities."
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This Agreement shall apply with respect to one or more offerings of
Securities, each of which shall be governed by a separate Pricing Agreement.
Prior to each purchase and public offering of Securities by the several
Underwriters, the Selling Stockholder and the several Underwriters shall enter
into an agreement substantially in the form of Exhibit A hereto (each, a
"Pricing Agreement"). The Pricing Agreement may take the form of an exchange of
any standard form of written communication among the Selling Stockholder and the
Underwriters and shall specify such applicable information as is indicated in
Exhibit A hereto, including Schedule A thereto. Each offering of Securities
will be governed by this Agreement, as supplemented by the Pricing Agreement
applicable to such offering. From and after the date of the execution and
delivery of a Pricing Agreement, this Agreement shall be deemed to incorporate
that Pricing Agreement with respect to such offering. The date of the
applicable Pricing Agreement is referred to as the "Representation Date."
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-50971 and 333-
84675), including a prospectus, for the registration of securities (including
the Securities) under the Securities Act of 1933, as amended (the "1933 Act"),
which have been declared effective by the Commission, and shall promptly
hereafter file with or transmit for filing to the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Securities
pursuant to Rule 424 under the Securities Act. Such registration statements (as
amended, if applicable) and the prospectus constituting part of the registration
statement which relates to the Securities (including the information contained
in a prospectus supplement filed pursuant to Rule 424(b)(2) and (5) of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and all documents, if any, incorporated by reference thereafter),
as from time to time amended or supplemented pursuant to the 1933 Act, are
hereinafter referred to as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised base prospectus shall be provided to
the Underwriters by the Company for use in connection with the offering of
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective or if any revised supplemental
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
supplemental prospectus on file at the Commission (whether or not such revised
base or supplemental prospectus is required to be or is filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use. Any Registration Statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system.
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I.
On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Selling
Stockholder agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the Selling
Stockholder, at the price per share set forth in the Pricing Agreement, the
number of Initial Securities set forth in Schedule A to the Pricing Agreement
opposite the name of such Underwriter, plus any additional number of Initial
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Article VIII hereof.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Selling
Stockholder hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate number of Option Securities set forth
opposite their respective names in Schedule A to the Pricing Agreement at the
price per share set forth in Paragraph (2) of the Pricing Agreement. If the
option is exercised as to all or any portion of the Option Securities, the
Selling Stockholder will sell and each of the Underwriters, acting severally and
not jointly, will purchase from the Selling Stockholder the number of Option
Securities which bears the same proportion to the total number of Option
Securities to be purchased from the Selling Stockholder as the number of Initial
Securities set forth in Schedule A to the Pricing Agreement opposite the name of
such Underwriter bears to the total number of Initial Securities. The option
hereby granted will expire 30 days after the Representation Date, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriters to the
Selling Stockholder and the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
the Underwriters but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, unless otherwise agreed upon by you, the Selling Stockholder and the
Company.
The purchase price per share to be paid by the several Underwriters
for the Securities shall be an amount equal to the public offering price, less
an amount per share to be determined by agreement between the Underwriters and
the Selling Stockholder. The public offering price per share of the Securities
shall be a fixed price to be determined by agreement between the Underwriters
and the Selling Stockholder. The public offering price and the purchase price,
when so determined, shall be set forth in the Pricing Agreement.
II.
The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Securities upon the terms
set forth in the Prospectus as soon as the Underwriters deem advisable after the
Pricing Agreement has been executed and delivered.
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In accordance with the Selling Stockholder's obligations to the
Company under Section 3(g) of that certain Registration Rights Agreement, dated
March 12, 1995, between General Motors Corporation ("GM") and the Selling
Stockholder, as succeeded to by the Company pursuant to that certain Succession
Agreement, dated June 7, 1996, between GM and the Company, each Underwriter
severally covenants that it will, collectively with the other Underwriters, use
its reasonable best efforts (i) to effect a broad public distribution of the
Securities and (ii) not to sell to any one Person (or group of related Persons
acting pursuant to a plan or arrangement) (whether such Person (or group of
related Persons acting pursuant to a plan or arrangement) is buying for its own
account or as a fiduciary on behalf of one or more accounts) if (A) such sale is
of Securities constituting more than 2% of the Common Stock outstanding as of
the date hereof or (B) such Person (or group of related Persons acting pursuant
to a plan or arrangement) is a 5% Person, or, at any time prior to the time of
such sale, has been designated in a written list provided by GM to the
Underwriters as, to the reasonable belief of GM, beneficially owning (as defined
in Rule 13d-3 ("Rule 13d-3") of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) 2% or more of the total voting power or total value of the
Common Stock then outstanding. As used herein, the term "5% Person" shall mean
any Person (or group of related Persons acting pursuant to a plan or
arrangement) that, directly or indirectly, beneficially owns (as defined in Rule
13d-3) shares of Common Stock that constitute 5% or more of the total voting
power or total value of the Common Stock then outstanding. As used herein, the
term "Person" shall mean an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity or any department, agency or political
subdivision thereof.
III.
Payment of the purchase price for, and delivery of certificates for,
or evidence of book-entry transfer of, the Initial Securities shall be made at
the offices of Vinson & Elkins L.L.P., 3700 Trammell Crow Center, 2001 Ross
Avenue, Dallas, Texas, or at such other place as shall be agreed upon by the
Underwriters, the Company and the Selling Stockholder, at 9:00 a.m. (Central
time) on a date no later than the fourth business day (unless postponed in
accordance with Article VIII herein) following the Representation Date, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriters, the Company and the Selling Stockholder (each such
time and date of payment and delivery being herein called a "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates for, or evidence of book-entry transfer of, such Option Securities
shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Underwriters, the Company and the Selling Stockholder, on
each Date of Delivery as specified in the notice from you to the Company and the
Selling Stockholder. The Selling Stockholder shall not be obligated to deliver
any of the Securities to be delivered at Closing Time or on a Date of Delivery
except upon payment for all the Securities to be purchased at such time or on
such date as provided herein.
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to a bank account designated by the Selling
Stockholder, against delivery to the Underwriters of certificates for the
Securities to be purchased by them. Certificates for the Initial
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Securities and the Option Securities shall be in such denominations and
registered in such names as the Underwriters may request in writing at least one
full business day before Closing Time or the Date of Delivery, as the case may
be. The Underwriters, individually, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by Closing Time or the Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder. The certificates for the Securities
will be made available for examination and packaging by the Underwriters not
later than 10:00 a.m. (Eastern time) on the last business day prior to Closing
Time or the Date of Delivery, as the case may be.
IV.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been
no material adverse change, or development involving in the current
reasonable view of the Company's management a prospective material adverse
change, in the condition of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement; and you shall
have received, at Closing Time, a certificate of an officer of the Company
(acting on behalf of the Company and without personal liability), dated the
Closing Time, to the foregoing effect. Such certificate will also provide
that the representations and warranties of the Company contained herein are
true and correct as of the Closing Time. The officer may rely upon the
best of his knowledge in making such certification. You shall also have
received, at Closing Time, a certificate of an authorized agent of the
Selling Stockholder (acting on behalf of the Selling Stockholder and
without personal liability), dated the Closing Time, providing that the
representations and warranties of the Selling Stockholder contained herein
are true and correct as of the Closing Time; such authorized agent may rely
upon the best of his knowledge in making such certification.
(b) You shall have received the favorable opinion, dated as of the
Closing Time, of D. Gilbert Friedlander, General Counsel of the Company, to
the effect that:
(i) the Company is a corporation validly existing and in good
standing under the laws of the State of Delaware, is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification and has all requisite corporate
power and authority to own, lease and operate its properties and to
carry on its business as now being conducted, except where the failure
to be so qualified or in good standing would not have a materially
adverse effect on the financial position of the Company and its
subsidiaries taken as a whole;
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(ii) the authorized, issued and outstanding capital stock of the
Company conforms as to legal matters to the description thereof
incorporated by reference in the Prospectus;
(iii) the outstanding shares of Common Stock, including without
limitation the Securities sold by the Selling Stockholder hereunder,
have been duly authorized and validly issued and are fully paid and
nonassessable;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the execution, delivery and performance of this Agreement
will not contravene any provision of applicable law or the Restated
Certificate of Incorporation or the Amended and Restated Bylaws of the
Company or any agreement or other instrument known to such counsel and
binding upon the Company, and no consent, approval or authorization of
any governmental body or agency is required for the performance of
this Agreement other than the registration of the Securities under the
1933 Act and compliance with the securities or Blue Sky Laws of
various foreign and state jurisdictions (as to which no opinion is
expressed);
(vi) the statements under the heading "Services for General
Motors" incorporated by reference in the Prospectus (as such
disclosure has been updated or superseded by documents subsequently
filed by the Company with the Commission pursuant to the 1934 Act,
which documents are incorporated by reference in the Prospectus), the
description of the capital stock of the Company incorporated by
reference in the Prospectus, and the statements in the Prospectus
under the headings "Underwriters" and "Plan of Distribution," insofar
as such statements constitute a summary of the legal matters or
documents referred to therein, fairly summarize the information called
for with respect to such legal matters and documents; and
(vii) after due inquiry, such counsel does not know of any legal
or governmental proceeding or investigation pending or threatened to
which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company is subject which is required to
be described in the Registration Statement or the Prospectus and is
not so described or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required.
(c) You shall have received the favorable opinion, dated as of the
Closing Time, of Vinson & Elkins L.L.P., counsel for the Underwriters,
covering the matters referred to in (ii) (as to the number and class of
authorized capital stock only), (iv) and (vi) (as to the description of
capital stock and "Underwriters" only) in (b) above.
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(d) You shall have received the favorable opinion, dated as of the
Closing Time, of Jones, Day, Reavis & Pogue, counsel for the Trustee, to
the effect that:
(i) the Trustee has been appointed by the named fiduciary of
the Selling Stockholder (the "Named Fiduciary") (as determined in
accordance with Section 402(a) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), to manage the Securities
held by the Selling Stockholder and to exercise all rights, powers and
privileges appurtenant to such Securities (subject to the authority of
the Named Fiduciary to terminate such appointment and appoint one or
more other investment managers for any such Securities);
(ii) the Trustee has full power and authority to execute and
deliver this Agreement for the account and on behalf of the Selling
Stockholder and to so bind the Selling Stockholder; and
(iii) upon the payment for the Securities as herein contemplated,
each of the Underwriters shall acquire a security entitlement (as that
term is defined in the Uniform Commercial Code as in effect in the
State of New York (the "NYUCC")) with respect to the Securities free
and clear of any action based on an adverse claim (as that term is
defined under the NYUCC) to the Securities, provided that each of the
Underwriters does not have notice of any adverse claim (within the
meaning of Section 8-105 of the NYUCC).
(e) Each counsel referred to in (b) and (c) above shall additionally
state that, based upon the participation of such counsel in the preparation
of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including, with respect to counsel referred to
in (c) above, documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), nothing has come to the attention of such counsel
that would lead such counsel to believe that the Registration Statement, at
the time it became effective or at the Representation Date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the Representation Date (unless
the term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at
the Representation Date, in which case at the time it is first provided to
the Underwriters for such use) or at the Closing Time, included 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, however, that such
counsel need not make such statement with respect to the financial
statements and supporting schedules and other financial information
contained or incorporated by reference into or omitted from the
Registration Statement and the Prospectus.
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(f) You shall have received on the date of this Agreement a letter
dated such date and also at the Closing Time a letter dated as of the
Closing Time, in each case in form and substance satisfactory to you, from
KPMG LLP, independent auditors, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the historical financial statements and
certain historical financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(g) At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the sale of the Securities as
contemplated herein and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Stockholder in connection with the sale of the
Securities as herein contemplated shall be reasonably satisfactory in form
and substance to you and your counsel.
(h) In the event the Underwriters exercise their option provided in
Article I hereof to purchase all or any portion of the Option Securities,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and you shall have received:
(i) a certificate, dated such Date of Delivery, of an officer
of the Company (acting on behalf of the Company and without personal
liability) confirming that the certificate of an officer of the
Company delivered at Closing Time pursuant to Article IV(a) hereof
remains true and correct as of such Date of Delivery, and a
certificate, dated such Date of Delivery, of an authorized agent of
the Selling Stockholder (acting on behalf of the Selling Stockholder
and without personal liability) confirming that the certificate of an
authorized agent of the Selling Stockholder delivered at Closing Time
pursuant to Article IV(a) hereof remains true and correct as of such
Date of Delivery;
(ii) the favorable opinion of D. Gilbert Friedlander, General
Counsel of the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Article IV(b) and (e) hereof;
(iii) the favorable opinion of Vinson & Elkins L.L.P., counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Article IV(c) and (e) hereof;
(iv) the favorable opinion of Jones, Day, Reavis & Pogue,
counsel for the Trustee, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Article IV(d) hereof; and
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(v) the letter from KPMG LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to you pursuant to
Article IV(f) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
If any condition specified in this Article shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company and the Selling Stockholder at any time at or
prior to Closing Time or the Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Article VIII.
V.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, three copies of the Registration
Statement as filed with the Commission (including exhibits thereto and
documents incorporated therein by reference) and to each other Underwriter
and the Selling Stockholder a copy of the Registration Statement (without
exhibits thereto but including documents incorporated therein by reference)
and, during the period mentioned in paragraph (c), any supplements and
amendments thereto as you may reasonably request. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission pursuant to
the 1934 Act, which are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish you and the Selling Stockholder (or their
respective counsel) a copy of each such proposed amendment or supplement,
unless otherwise directed by you or the Selling Stockholder.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of your counsel the Prospectus
is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law.
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(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection therewith.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve month period
ending December 31, 2000, which shall satisfy the provisions of Section
11(a) of the 1933 Act and the 1933 Act Regulations.
(f) Not to sell, transfer or otherwise dispose of or transfer
(including any pledge and any disposition upon the foreclosure of any
pledge or any agreement to do any of the foregoing), without the prior
written consent of the Underwriters acting on your behalf, any shares of
Common Stock (or securities convertible into or exchangeable or exercisable
for such shares) for 90 days following the date of the Prospectus, provided
that the Company shall not be precluded from (i) the issuance of shares of
Common Stock upon the conversion, exercise or exchange, by the holder
thereof, of options, warrants or other securities convertible into or
exercisable for the Common Stock pursuant to the terms of such options,
warrants or other securities, (ii) transfers pursuant to the terms of any
other agreement to issue shares of Common Stock (or any securities
convertible into or exchangeable or exercisable for the Common Stock) in
effect on the date of the Pricing Agreement, (iii) transfers pursuant to
the terms of any agreement in connection with any acquisition, merger,
consolidation or other business combination and (iv) transfers (including
grants or issuances) under or in connection with dividend reinvestment
plans or employee benefit plans of the Company (or a subsidiary of the
Company).
In further consideration of the agreements of the Underwriters herein
contained, the Selling Stockholder covenants not to offer or sell, or solicit
offers to purchase, or transfer or otherwise dispose of (including any pledge
and any disposition upon the foreclosure of any pledge or any agreement to do
any of the foregoing), any shares of Common Stock (or securities convertible
into or exchangeable for such shares) (other than transfers to or for the
benefit of employee benefit plans of the Company or any of its affiliates) for
90 days following the date of the Prospectus, without the prior written consent
of the Underwriters; provided, that nothing contained in this Article V shall
prevent the sale of Securities hereunder.
VI.
The Company represents and warrants to each Underwriter and the
Selling Stockholder that (i) this Agreement has been duly authorized, executed
and delivered by the Company, (ii) each document filed or to be filed pursuant
to the 1934 Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the 1934 Act and the rules
and regulations of the Commission thereunder, (iii) each Preliminary Prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material
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respects with the 1933 Act and the 1933 Act Regulations, and (iv) the
Registration Statement and Prospectus complied on the date the Registration
Statement became effective, and will comply on each Representation Date, in all
material respects with the 1933 Act and the 1933 Act Regulations and, as of such
dates did not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; except that these representations
and warranties do not apply to statements or omissions in the Registration
Statement or the Prospectus or any preliminary Prospectus based upon information
furnished to the Company in writing by the Selling Stockholder or by any
Underwriter through you expressly for use therein.
The Selling Stockholder represents and warrants to the Company and
each Underwriter that (i) this Agreement and the Pricing Agreement have been
duly authorized, executed and delivered by the Selling Stockholder, (ii) the
Selling Stockholder has good and marketable title to the Securities to be sold
by the Selling Stockholder hereunder and full power, right and authority to sell
the Securities, and upon the delivery of and payment for the Securities as
herein contemplated, each of the Underwriters will receive good and marketable
title to the Securities purchased by it from the Selling Stockholder, free and
clear of any mortgage, pledge, lien, security interest, encumbrance, claim or
equity, (iii) any written information furnished to the Company by the Selling
Stockholder for use in the Registration Statement, the Prospectus, any
amendments or supplements thereto, or any preliminary Prospectus does not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading, and (iv) the
Selling Stockholder has not taken and will not take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock.
The Trustee represents and warrants to the Company and each
Underwriter that (i) the Trustee has been appointed by the Named Fiduciary (as
determined in accordance with Section 402(a) of ERISA) to manage the Securities
held by the Selling Stockholder as described herein and to exercise all rights,
powers and privileges appurtenant to such Securities (subject to the authority
of the Named Fiduciary to terminate such appointment and appoint one or more
other investment managers for any such Securities); and (ii) the Trustee has
full power and authority to execute and deliver this Agreement for the account
and on behalf of the Selling Stockholder and to so bind the Selling Stockholder.
The Company agrees to indemnify and hold harmless each Underwriter,
the directors, partners and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act from and against (i) any and all losses, claims, damages, liabilities
and reasonable expenses arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any and all losses, claims, damages, liabilities and reasonable expenses
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based
-11-
<PAGE>
upon any such untrue statement or omission, or any such alleged untrue statement
or omission, provided that any such settlement is effected with the written
consent of the Company, and (iii) any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Morgan Stanley),
reasonably incurred in investigating, preparing and defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under the preceding clauses (i)
or (ii), promptly after receipt of adequate documentation relating thereto;
provided, however, that this indemnity shall not apply to any such losses,
claims, damages, liabilities or expenses arising out of any such untrue
statement or omission or alleged untrue statement or omission that is based upon
information furnished to the Company in writing by any Underwriter expressly for
use therein; and provided that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages, liabilities or
expenses purchased Securities, or any person controlling such Underwriter, if it
shall be established that a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability, and if the Company had previously furnished
copies thereof to such Underwriter in the quantities reasonably requested by
such Underwriter. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
The Selling Stockholder agrees, to the extent permitted under
applicable law, to indemnify and hold harmless the Underwriters, their
directors, partners and each person, if any, who controls the Underwriters
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information furnished to the Company in
writing by the Selling Stockholder expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. This indemnity agreement will be in addition to any
liability which the Selling Stockholder may otherwise have. No claim against
the assets of the Selling Stockholder shall be created by this paragraph, except
as and to the extent permitted by applicable law.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, each of its officers who sign the
Registration Statement, the Selling Stockholder, its trustees (including the
Trustee) and directors and each person, if any, who controls the Company or the
Selling Stockholder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to information
furnished to the Company in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
-12-
<PAGE>
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the indemnifying
party) in writing; provided, however, that the omission so to notify the
indemnifying party shall not relieve the indemnifying party of any liability
which it may have to such indemnified party except to the extent that the
indemnifying party was materially prejudiced by such failure to notify and in
any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party shall have agreed in
writing to pay such fees and expenses, (ii) the indemnifying party shall have
failed to take reasonable steps necessary to defend diligently any claim within
ten calendar days after receiving written notice from the indemnified party that
the indemnified party believes the indemnifying party has failed to take such
steps or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred after receipt of adequate documentation thereof.
In the case of any such separate firm for the Underwriters and such control
persons of Underwriters, such firm shall be designated in writing by Morgan
Stanley. In the case of any such separate firm for the Selling Stockholder and
such control persons of the Selling Stockholder, such firm shall be designated
in writing by the Named Fiduciary. In the case of any such separate firm for
the Company, and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution could be sought under this Article VI (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such claim, 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. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement.
If the indemnification provided for in the fourth, fifth or sixth
paragraph of this Article VI is unavailable to an indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
-13-
<PAGE>
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholder on the one hand and
the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
of the Selling Stockholder on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportions as the net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholder bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover of the Prospectus. The
relative fault of the Company, the Selling Stockholder and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, by the
Selling Stockholder or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Selling Stockholder and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Article VI
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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VI, the
aggregate contribution of the Selling Stockholder under this Article VI, will
not exceed the proceeds received by the Selling Stockholder from the Securities
sold by it and the Selling Stockholder shall not be required to contribute under
this Article VI in respect of any costs, expenses, losses, damages or other
liabilities unless the same arise with reference to any information furnished to
the Company in writing by the Trustee acting on behalf of the Selling
Stockholder expressly for use in the Registration Statement. Notwithstanding
the provisions of this Article VI, no Underwriter shall be required to
contribute any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 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 Article VI are several in proportion to the
respective number of Securities purchased by each Underwriter, and not joint.
No party contributing pursuant to this Article VI shall be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent such contributing party agrees to contribute to that
amount paid or payable by the indemnified party as a result of any loss or
liability by reason of such settlement.
-14-
<PAGE>
As between the Company and the Selling Stockholder on the one hand and
the Underwriters on the other, the Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters (but excluding any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters), (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under U.S. state securities or blue sky laws and
foreign securities laws in accordance with the provisions hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Memorandum and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus and of the
Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Memorandum
and any supplement thereto, (viii) the fees and expenses of any transfer agent
or registrar for the Securities, and (ix) the filing fees incident to the review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities. This paragraph does not supersede any agreement between the
Company and the Selling Stockholder with respect to the allocation between them
of any such expenses. The Selling Stockholder will pay all stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the Underwriters.
The representations, warranties and agreements in this Article VI
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers and directors or any other person controlling the
Company and (iii) acceptance of any payment for any of the Securities.
VII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company and the Selling Stockholder, if prior
to the Closing Time (i) there has been, since the Representation Time or since
the respective dates as of which information is given in the Prospectus, any
material adverse change or any development involving a prospective material
adverse change in the condition of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus, the effect
of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Securities or to enforce contracts for the sale of
Securities, (ii) trading in securities generally or trading in the Common Stock
on the New York Stock Exchange or the London Stock Exchange shall have been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of such
exchanges or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, (iii) a general
-15-
<PAGE>
moratorium on commercial banking activities in New York or London shall have
been declared by either Federal, New York State or British authorities, as
applicable, or (iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity the effect of which on the financial
markets of the United States or London is such as to make it, in your reasonable
judgment, impracticable to market the Securities or enforce contracts for the
sale of the Securities.
VIII.
This Agreement shall become effective with respect to an offering when
you and the Selling Stockholder shall have agreed upon the purchase price of the
Securities and shall have executed and delivered a Pricing Agreement. If the
purchase price of the Securities shall not have been agreed upon or a Pricing
Agreement shall not have been executed and delivered by all parties thereto
prior to 5:00 p.m., New York Time, on the seventh full business day after the
date hereof, this Agreement shall thereupon terminate without liability on the
part of the Underwriters, the Company or the Selling Stockholder, except as set
forth herein.
If as of the Closing Time, any one or more of the Underwriters shall
fail or refuse to purchase the Initial Securities which it or they have agreed
to purchase hereunder on such date, and the aggregate number of the Initial
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Initial Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions which the number of Initial Securities
set forth opposite their names in Schedule A to the Pricing Agreement bear to
the aggregate number of Initial Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Initial Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Securities which any Underwriter has agreed
to purchase pursuant to Schedule A to the Pricing Agreement be increased
pursuant to this Article VIII by an amount in excess of one-ninth of such number
without the written consent of such Underwriter. If, at the Closing Time, any
Underwriter or Underwriters shall fail or refuse to purchase the Initial
Securities and the aggregate number of the Initial Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of the
Initial Securities to be purchased on such date, and arrangements satisfactory
to you and the Company and the Selling Stockholder for the purchase of such
Securities are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholder. In any such case you or the Company and the
Selling Stockholder shall have the right to postpone the Closing Time, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Selling Stockholder to comply with the terms or to fulfill any of the conditions
of this Agreement to be complied with or fulfilled by the
-16-
<PAGE>
Company or the Selling Stockholder, or if for any reason the Company or the
Selling Stockholder shall be unable to perform its obligations under this
Agreement, the party who failed or refused to comply or fulfill any such
condition will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; provided, that the provisions of Article VI
shall survive such termination.
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Each of the Underwriters, the
Company, and the Selling Stockholder agree to accept delivery of facsimile,
counterpart signature pages of this Agreement and the Pricing Agreement to
establish the respective execution and delivery of this Agreement and the
Pricing Agreement. When facsimile signature pages are used, the person
executing and delivering this Agreement or the Pricing Agreement by facsimile
signature pages agrees to provide a manually-signed signature page to this
Agreement or the Pricing Agreement, as appropriate, to the other persons party
to such agreement as soon as is reasonably practicable following use of
facsimile signature pages, but failure to do so shall not impair the
enforceability of this Agreement or the Pricing Agreement against that person.
-17-
<PAGE>
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ D. Gilbert Friedlander
---------------------------------------------
D. Gilbert Friedlander
Senior Vice President
GENERAL MOTORS HOURLY-RATE
EMPLOYEES PENSION PLAN
By: United States Trust Company of New York,
as Trustee
By: /s/ Robert S. Cummings
---------------------------------------------
Robert S. Cummings
Authorized Agent
[Signature Page - Purchase Agreement]
<PAGE>
CONFIRMED AND ACCEPTED,
as of the date first above written
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
By: Morgan Stanley & Co. Incorporated
By: /s/ Jay Yarbrough
------------------------------------
Jay Yarbrough
Vice President
[Signature Page - Purchase Agreement]
<PAGE>
EXHIBIT A
---------
15,000,000 Shares
ELECTRONIC DATA SYSTEMS CORPORATION
(a Delaware corporation)
Common Stock
(Par Value $0.01 Per Share)
PRICING AGREEMENT
-----------------
February 17, 2000
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated February 17, 2000
(the "Purchase Agreement"), relating to the purchase by the several Underwriters
named in Schedule A hereto (the "Underwriters"), of the above shares of Common
Stock of Electronic Data Systems Corporation (the "Company"). This Pricing
Agreement is entered into pursuant to the Purchase Agreement and relates to the
purchase and public offering by the Underwriters of the number of Securities set
forth above (the "Securities").
Pursuant to Article I of the Purchase Agreement, the Selling
Stockholder agrees with each Underwriter as follows:
(1) The public offering price per share for the Securities,
determined as provided in said Article I, shall be $69.6875.
(2) The purchase price per share for the Initial Securities to be
paid by the several Underwriters, and the purchase price per share for the
Option Securities, shall be $67.9475, being an amount equal to the public
offering price set forth above less $1.7400 per share.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Selling Stockholder a counterpart
hereof (with a copy to the Company), whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters and the
Selling Stockholder in accordance with its terms.
GENERAL MOTORS HOURLY-RATE
EMPLOYEES PENSION PLAN
By: United States Trust Company of New York,
as Trustee
By: /s/ ROBERT S. CUMMINGS
-------------------------------------------
Robert S. Cummings
Authorized Agent
[Signature Page - Pricing Agreement]
<PAGE>
CONFIRMED AND ACCEPTED,
as of the date first above written
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
By: Morgan Stanley & Co. Incorporated
By: /s/ JAY YARBROUGH
------------------------------------
Jay Yarbrough
Vice President
[Signature Page - Pricing Agreement]
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of Initial Number of Option
Name of Underwriter Securities Securities
- ----------------------------------------- ------------------------ ------------------------
<S> <C> <C>
Morgan Stanley & Co. Incorporated 3,750,000 562,500
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 3,750,000 562,500
Goldman, Sachs & Co. 3,750,000 562,500
Salomon Smith Barney Inc. 3,750,000 562,500
---------- ---------
15,000,000 2,250,000
========== =========
</TABLE>
