Exhibit 1.1
[_______________] Shares
AGILENT TECHNOLOGIES, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
[__________], 1999
[_____________], 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
X.X. Xxxxxx & Co., Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
XX Xxxxx Securities Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Bear, Xxxxxxx International Limited
Credit Suisse First Boston Limited
X.X. Xxxxxx Securities Limited
Xxxxxx Brothers International (Europe)
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx Barney Inc.
Societe Generale
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Agilent Technologies, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below)
[__________] shares of its Common Stock, par value $0.01 per share (the "Firm
Shares").
It is understood that, subject to the conditions hereinafter stated,
[_________] Firm Shares (the "U.S. Firm Shares") will be sold to the several
U.S. Underwriters named in
Schedule I hereto (the "U.S. Underwriters") in connection with the offering and
sale of such U.S. Firm Shares in the United States and Canada to United States
and Canadian Persons (as such terms are defined in the Agreement Between U.S.
and International Underwriters of even date herewith), and [________] Firm
Shares (the "International Shares") will be sold to the several International
Underwriters named in Schedule II hereto (the "International Underwriters") in
connection with the offering and sale of such International Shares outside the
United States and Canada to persons other than United States and Canadian
Persons. Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. shall act as
representatives (the "U.S. Representatives") of the several U.S. Underwriters,
and Xxxxxx Xxxxxxx & Co. International Limited and Xxxxxxx Sachs International
shall act as representatives (the "International Representatives") of the
several International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional [________] shares of its Common Stock,
par value $0.01 per share (the "Additional Shares"), if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of common stock granted to
the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares". The shares of
Common Stock, par value $0.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus". If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. References herein to the subsidiaries of Hewlett-Packard Company
("Hewlett-Packard") do not include the Company and its subsidiaries. As used
herein, "Significant Subsidiaries" shall mean those subsidiaries of the Company
named in Schedule III hereto, and references to subsidiaries of the Company
shall include the Significant Subsidiaries.
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1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Except in each case as described in the Prospectus,
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) neither the Company nor any
Significant Subsidiary has incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (iii) there
has not been any material change in the capital stock of the Company or any
Significant Subsidiary or in the consolidated short-term debt or long-term
debt of the Company and its subsidiaries.
(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(e) Each Significant Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its
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incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each Significant Subsidiary have been
duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(f) The subsidiaries of the Company listed on Schedule III hereto
are the only subsidiaries of the Company that (i) are "significant
subsidiaries" as that term is defined in Rule 1-02(w)(1) or (2) (but
excluding clause (3)) of Regulation S-X, or (ii) had a net book value, as
of April 30, 1999, in excess of 10% of the consolidated net book value of
the Company and its subsidiaries.
(g) The Company and each Significant Subsidiary possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, except to the extent that the failure to possess
such certificates, authorizations or permits would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; and
neither the Company nor any Significant Subsidiary has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit, with respect to which there is a
reasonable possibility of any unfavorable decision, ruling or finding that,
singly or in the aggregate, would result in a material adverse effect on
the Company and its subsidiaries, taken as a whole, except as described the
Prospectus.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(j) The shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully paid
and nonassessable.
(k) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and nonassessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(l) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene
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(i) any provision of applicable law or the certificate of incorporation or
bylaws of the Company or (ii) any agreement or other instrument binding
upon the Company or any Significant Subsidiary that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any Significant Subsidiary, except, in the case of this
clause (ii), for any such contravention that would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; and
no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(m) There has not occurred any material adverse change, or any
development reasonably likely to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(n) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(o) Each preliminary prospectus filed on or after October 22,
1999 as part of the registration statement or any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so filed
in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(p) Each of (i) the Master Separation and Distribution Agreement
dated as of August 12, 1999 between the Company and Hewlett-Packard, (ii)
the General Assignment and Assumption Agreement, (iii) the Master
Technology Ownership and License Agreement, (iv) the Master Patent
Ownership and License Agreement, (v) the Master Trademark Ownership and
License Agreement, (vi) the ICBD Technology Ownership and License
Agreement, (vii) the Employee Matters Agreement, (viii) the Tax Sharing
Agreement, (ix) the Master IT Service Level Agreement, (x) the Real Estate
Agreement, (xi) the Environmental Matters Agreement, (xii) the Master
Confidential Disclosure Agreement and (xiii) the Indemnification and
Insurance Matters Agreement, each agreement referred to in clauses (ii)
through (xiii) dated as of November [1], 1999 and each between the Company
and Hewlett-Packard (the agreements referred to in clauses (i) through
(xiii) of this paragraph (o) are collectively referred to herein as the
"Intercompany
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Agreements"), has been duly authorized, executed and delivered by the
Company, is in full force and effect, and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject to (1) judicial principles limiting the
availability of specific performance, injunctive relief and other equitable
remedies; (2) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally; and (3) limitations on the enforceability of certain
indemnification provisions of the Indemnification and Insurance Matters
Agreement under applicable laws.
(q) The execution, delivery and performance by the Company of
each of the Intercompany Agreements will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any Significant
Subsidiary is bound or to which the Company or any Significant Subsidiary
is subject, nor will such actions result in any violation of any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any Significant Subsidiary or any of their
properties or assets (except in each case for such conflicts, breaches,
violations and defaults as would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole); nor will such actions
result in any violation of any provision of applicable law or of the
certificate of incorporation or bylaws of the Company; and no consent,
approval, authorization or order of, or filing or registration with, any
court or governmental agency or body is required for the execution and
delivery by the Company of, and compliance by the Company with, the
provisions of each of the Intercompany Agreements, except such as shall
have been obtained or waived or that, if not obtained or waived, would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(r) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(s) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all 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,
except to the extent that the failure to own or possess or the inability to
acquire any of the foregoing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole; and neither the Company
nor any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling
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or finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(t) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and any material real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, in each case except as described in the
Prospectus.
(u) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(v) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(w) No material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent.
(x) The Company and its subsidiaries, taken as a whole, are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any of
its subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business
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at a cost that would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, except as described in the Prospectus.
(y) The Company and its subsidiaries, taken as a whole, maintain
a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(z) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the Year 2000
Problem (that is, any significant risk that computer hardware or software
applications used by the Company and its subsidiaries will not, in the case
of dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000); as a result of such review, (i) the Company has
no reason to believe, and does not believe, that (A) there are any issues
related to the Company's preparedness to address the Year 2000 Problem that
are of a character required to be described or referred to in the
Registration Statement or Prospectus which have not been accurately
described in the Registration Statement or Prospectus and (B) the Year 2000
Problem will have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or result in any material loss or
interference with the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) the Company and its subsidiaries
have taken reasonable measures to determine whether critical suppliers,
vendors, customers and other material third parties used or served by the
Company and such subsidiaries are addressing or will address the Year 2000
Problem in a timely manner; and the Company and such subsidiaries have
developed contingency plans reasonably designed to address the failure of
any such supplier, vendor, customer or third party to address the Year 2000
Problem in a timely manner, except to the extent that any such failure
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company and
its subsidiaries, taken as a whole.
(aa) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
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2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedules I and II
hereto opposite its names at U.S.$[_____] a share ("Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to [________]
Additional Shares at the Purchase Price. If the U.S. Representatives, on
behalf of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date or, if after the
Closing Date, not earlier than three business days after the date of the notice
or later than ten business days after the date of such notice. Additional
Shares may be purchased as provided in Section 4 hereof solely for the purpose
of covering overallotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each U.S. Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the U.S.
Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of U.S. Firm Shares
set forth in Schedule I hereto opposite the name of such U.S. Underwriter bears
to the total number of U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) the Shares to be sold hereunder; (b) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant (1) outstanding
on the date hereof of which the Underwriters have been advised in writing or (2)
to be assumed by the Company pursuant to any Intercompany Agreement; (c) the
issuance by the Company of shares of Common Stock upon the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing; (d) the issuance by the Company of shares of restricted
Common Stock as described in the Prospectus; (e) the issuance by the Company of
shares of Common Stock pursuant to its Employee Stock Purchase Plan, as such
plan exists on the date hereof; (f) the issuance by the
9
Company of any shares of Common Stock in connection with any acquisition of or
merger with another company or the acquisition of assets, provided in the case
of this clause (f) that each recipient of any such shares of Common Stock so
issued in any such acquisition or merger shall agree in writing for the benefit
of the Underwriters, in form and substance reasonably satisfactory to Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, that all such shares
of Common Stock shall remain subject to restrictions identical to those
contained in this first sentence of this paragraph for the remainder of the
period for which the Company is bound; or (g) the granting of stock options or
restricted stock units pursuant to any Company employee benefit or director
stock plan existing on the date hereof, provided in the case of this clause (g)
that any such options do not become exercisable and any such restricted stock
units do not vest during such 180-day period.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$[___] a share (the "Public Offering Price") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S.$[___] a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S.$[___] a share, to
any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made
to the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [______], 1999, or at such
other time on the same or such other date, not later than [five days], 1999, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date".
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than [ten days after option expires], 1999, as
shall be designated in writing by the U.S. Representatives. The time and date
of such payment are hereinafter referred to as the "Option Closing Date".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
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5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 4:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
outside counsel for the Company, dated the Closing Date, to the effect
that:
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(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, and has the corporate power and authority to own or lease
its property and to conduct its business as described in the
Prospectus;
(ii) the authorized capital stock of the Company conforms
in all material respects as to legal matters to the description
thereof contained in the Prospectus under the caption "Description of
Capital Stock";
(iii) the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, and the issuance of such
Shares will not be subject to any preemptive rights arising under the
Company's certificate of incorporation or bylaws or under Delaware law
or, to such counsel's knowledge, any similar rights;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene (a) any provision of applicable law or the
certificate of incorporation or bylaws of the Company, or, (b) any
agreement or instrument identified a schedule attached to such
opinion that is binding upon the Company or any Significant Subsidiary
(except for such contraventions as would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole), or (c)
to such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any Significant Subsidiary; and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, except (i) such as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares by the U.S. Underwriters and
(ii) to the extent that the failure to obtain any such consent,
approval, authorization, order or qualification would not have (a) a
material adverse effect on the Company and its subsidiaries, taken as
a whole, or (b) an adverse effect on the issue and sale of the Shares
hereunder or the consummation by the Company of the transactions
contemplated by this Agreement;
(vi) the statements (A) in the Prospectus under the
captions "Arrangements Between Agilent and Hewlett-Packard",
"Management --Incentive Plans", "Material United States Federal Income
Tax Consequences to
12
Non-United States Holders", "Description of Capital Stock" and
"Underwriters" (to the extent of the description of this Agreement)
and (B) in the Registration Statement in Items 14 and 15, in each case
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein;
(vii) each of the Intercompany Agreements has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(viii) the compliance by the Company with the provisions of
each of the Intercompany Agreements will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument identified on
a schedule attached to such opinion hereto that is binding on the
Company or any Significant Subsidiary, nor will such actions result in
any violation of any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any Significant Subsidiary or any of their properties
or assets (except for such conflicts, breaches, violations and
defaults as would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole); nor will such actions result
in any violation of any provision of applicable law or of the
certificate of incorporation or bylaws of the Company;
(ix) no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body
having jurisdiction over the Company or any of its properties or
assets is required for the execution and delivery by the Company of,
and compliance by the Company with, the provisions of each of the
Intercompany Agreements, except such as shall have been obtained or
waived or that, if not obtained or waived, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(x) to such counsel's knowledge, there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
(xi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
13
(xii) the Registration Statement and Prospectus (except for
financial statements and schedules and other financial and statistical
data included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
In addition, such counsel shall state that in addition to rendering
legal advice and assistance to the Company in the course of the preparation
of the Registration Statement and the Prospectus, involving, among other
things, discussions and inquiries concerning various legal matters and the
review of certain corporate records, documents and proceedings (in addition
to those described in such opinion), such counsel also participated in
conferences with certain officers and other representatives of the Company,
including its independent certified public accountants and with the
Underwriters and their counsel, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed; provided,
however, that such counsel may state that, except to the extent set forth
in paragraphs (ii) and (vi) of this Section 5(c), they have not
independently verified the accuracy, completeness or fairness of the
information contained in the Registration Statement and Prospectus.
Such counsel shall also state that based upon its participation as
described in the preceding paragraph, they confirm that they have no reason
to believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express
any belief) (A) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective contained
any 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 and (B) the Prospectus when issued contained, or as of the
date such opinion is delivered contains, any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may state that their opinion
is limited to the federal laws of the United States and the laws of the
States of California and Delaware.
(d) The Underwriters shall have received on the Closing Date an
opinion of D. Xxxxx Xxxxxxxx, General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company is duly qualified to transact business as a
foreign corporation under the corporation laws of, and is in good
standing as such in, each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure
14
to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own or lease its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business as a foreign corporation under the
corporation laws of, and is in good standing as such in, each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and nonassessable;
(iv) all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; and
(v) to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and
are not so described.
Opinions (ii) and (iv) of this Section 5(d) may be delivered by local
counsel reasonably satisfactory to counsel for the Underwriters in form and
substance reasonably satisfactory to counsel for the Underwriters, or, with
respect to such opinions, Xx. Xxxxxxxx may rely upon opinions of local
counsel, provided that he shall state that he believes that both you and he
are justified in relying on such opinions.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxx Xxxxxxx, associate general counsel of Hewlett-Packard, dated
the Closing Date, to the effect that:
(i) each of the Intercompany Agreements has been duly
authorized, executed and delivered by Hewlett-Packard and constitutes
a valid and
15
binding obligation of Hewlett-Packard, enforceable against Hewlett-
Packard in accordance with its terms;
(ii) the compliance by Hewlett-Packard with the provisions
of each of the Intercompany Agreements will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any agreement or instrument identified
on a Schedule attached to such opinion that is binding on Hewlett-
Packard or any of its "significant subsidiaries" (as that term is
defined in Rule 1-02 of Regulation S-X) (other than the Company); nor
will such actions result in any violation of any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over Hewlett-Packard or any such
subsidiary or any of their properties or assets; nor will such actions
result in any violation of any provision of applicable law (except in
each case for such conflicts, breaches, violations and defaults as
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole); nor will such actions result in any
violation of any provision of the certificate of incorporation or
bylaws of Hewlett-Packard; and
(iii) no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body
having jurisdiction over Hewlett-Packard or any of its subsidiaries or
any of their properties or assets is required for the execution and
delivery by Hewlett-Packard of, and compliance by Hewlett-Packard
with, the provisions of each of the Intercompany Agreements, except
such as shall have been obtained or waived or that, if not obtained or
waived, would not have a material adverse effect on the separation of
the Company's businesses from those of Hewlett-Packard as described in
the Prospectus or on the ability of the Company and the Underwriters
to consummate the offering contemplated hereby.
In rendering such opinion, such counsel may state that her opinion is
limited to the federal laws of the United States and the laws of the States
of California and Delaware.
(f) The Underwriters shall have received on the Closing Date
opinions of Xxxxx & Xxxxxxx/Xxxxx & XxXxxxxx with respect to Agilent Europe
B.V., Freshfields with respect to Agilent Japan, Ltd., [__________] with
respect to Agilent Technologies Sales (Malaysia) Sdn Bhd and [__________]
with respect to [Agilent Singapore], in the form of Exhibits B, C, D and E
hereto, to the effect that:
(i) the [Master Local Transfer Agreement] to which such
subsidiary of the Company is a party constitutes a valid and binding
obligation of each of the parties thereto, enforceable against each of
the parties thereto in accordance with its terms;
16
(ii) no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body having
jurisdiction over any of the parties to such [Master Local Transfer
Agreement] or any of their properties or assets is required for the
execution and delivery by such parties of, and compliance by such
parties with, the provisions of such [Master Local Transfer
Agreement], except such as shall have been obtained or waived or that,
if not obtained or waived, would not have a material adverse effect on
the separation of the business of such subsidiary of the Company from
those of Hewlett-Packard as contemplated by such [Master Local
Transfer Agreement]; and
(iii) the compliance by the parties to such [Master Local
Transfer Agreement] with the provisions of such [Master Local Transfer
Agreement] will not result in any violation of any provision of
applicable law.
The opinions of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, Xx. Xxxxxxxx and Xx. Xxxxxxx described in Sections 5(c), 5(d)
and 5(e) above, and the opinions of local counsel described in Section 5(f)
above, shall be rendered to the Underwriters at the request of the Company
and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Underwriters, dated the
Closing Date, in form and substance satisfactory to you.
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from PricewaterhouseCoopers LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
(i) The "lockup" agreements, each substantially in the form of
Exhibit A hereto, between you and Hewlett-Packard and between you and the
executive officers and directors of the Company relating to sales and
certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date.
(j) The Common Stock shall have been approved for listing on the
New York Stock Exchange, subject only to official notice of issuance.
(k) You shall have received such other documents and certificates
as are reasonably requested by you or your counsel.
17
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters related to
the issuance of the Additional Shares.
6 Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares 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, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
18
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the twelve-
month period ending October 31, 2001 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the fees, disbursements and expenses
of the Company's counsel and the Company's accountants in connection with
the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., (v) all costs and
expenses in connection with any offer and sale of the Shares outside of the
United States, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with offers and
sales outside the United States, (vi) all fees and expenses in connection
with the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to listing
the Shares on the NYSE, (vii) the cost of printing certificates
representing the Shares, (viii) the costs and charges of any transfer
agent, registrar or depositary, (ix) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of
the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (x) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable on
resale of
19
any of the Shares by them and any advertising expenses connected with any
offers they may make.
7 Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may
20
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx &
Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a),
and by the Company, in the case of parties indemnified pursuant to Section 7(b).
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(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
7(d)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the
21
offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
8 Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the
22
Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9 Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares 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 Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares 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 Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on
the Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. 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.
23
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10 Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11 Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
[Signature Page Follows]
24
12 Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
AGILENT TECHNOLOGIES, INC.
By:_______________________
Name:
Title:
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX & CO., INC.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XX XXXXX SECURITIES CORPORATION
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:___________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
BEAR, XXXXXXX INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON LIMITED
X.X. XXXXXX SECURITIES LIMITED
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXX XXXXX INTERNATIONAL
XXXXXXX XXXXX BARNEY INC.
SOCIETE GENERALE
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By: ____________________________
Name:
Title:
25
SCHEDULE I
U.S. UNDERWRITERS
Number of
Firm Shares
Underwriter To Be Purchased
-------------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated......................
Xxxxxxx, Sachs & Co....................................
Bear, Xxxxxxx & Co. Inc................................
Credit Suisse First Boston Corporation.................
X.X. Xxxxxx & Co., Inc.................................
Xxxxxx Brothers Inc....................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.....
Xxxxxxx Xxxxx Barney Inc...............................
XX Xxxxx Securities Corporation........................
[NAMES OF OTHER U.S. UNDERWRITERS]
Total U.S. Firm Shares.................................
SCHEDULE II
INTERNATIONAL UNDERWRITERS
Number of
Firm Shares
Underwriter To Be Purchased
-------------- ---------------
Xxxxxx Xxxxxxx & Co. International Limited...................
Xxxxxxx Sachs International..................................
Bear, Xxxxxxx International Limited..........................
Credit Suisse First Boston Limited...........................
X.X. Xxxxxx Securities Limited...............................
Xxxxxx Brothers International (Europe).......................
Xxxxxxx Xxxxx International..................................
Xxxxxxx Xxxxx Barney Inc.....................................
Societe Generale.............................................
[NAMES OF OTHER INTERNATIONAL UNDERWRITERS]
Total International Firm Shares..............................
SCHEDULE III
Significant Subsidiaries
------------------------
Agilent World Trade, Inc.
Agilent Europe B.V.
Agilent Japan, Ltd.
EXHIBIT A
[FORM OF LOCK-UP LETTER]
