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Exhibit 1.2
[Draft]
AGERE SYSTEMS INC.
Shares
Class A Common Stock, par value $0.01 per share
UNDERWRITING AGREEMENT
March , 2001
New York, New York
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned, Agere Systems Inc. (the "Company"), and Xxxxxx
Xxxxxxx & Co. Incorporated (the "Selling Stockholder"), in its capacity as
Selling Stockholder, hereby confirm their agreement with Xxxxxx Xxxxxxx & Co.
Incorporated (the "Underwriter"), in its capacity as Underwriter, as follows:
1. Description of Securities. The shares of Class A Common Stock,
par value $0.01 of the Company (the "Class A Common Stock"), and Class B Common
Stock, par value $0.01 of the Company (the "Class B Common Stock"), to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "Common Stock."
The Selling Stockholder proposes to issue and sell an aggregate
of shares of Company Class A Common Stock, par value $0.01 per share (the
"Firm Shares") to the Underwriter.
The Selling Stockholder also proposes to issue and sell to the
Underwriter, if the conditions in Section 4 hereof have been satisfied, not more
than an additional shares of its Common Stock, par value $0.01 (the
"Additional Shares") if and to the extent that the Underwriter shall have
determined to exercise the right to purchase such shares of common stock granted
to the Underwriter in Section 4 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares."
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Each Share will have attached thereto one right (collectively,
the "Rights") to purchase one-thousandth of a share of junior preferred stock,
par value $1.00 of the Company (the "Junior Preferred Shares"). The Rights have
been issued pursuant to a Rights Agreement (the "Rights Agreement") dated as of
March , 2001 between the Company and The Bank of New York, as Rights Agent.
2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-51594) on Form
S-1, including a prospectus relating to the Shares, which has become effective
under the Securities Act of 1933 (the "Act"). The term "Registration Statement"
means the Registration Statement as amended to the date hereof including the
information, if any, deemed to be part of the Registration Statement at the time
of effectiveness pursuant to Rule 430A under the Act, and the term "Prospectus"
means the prospectus in the form first used to confirm sales of the Shares. The
term "preliminary prospectus" means any preliminary prospectus relating to the
Shares used prior to the effectiveness of the Registration Statement. If the
Company has filed an abbreviated registration statement to register additional
shares of Class A 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.
(b) (i) The Registration Statement when it became effective did
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) each preliminary prospectus relating to the Shares, if any,
complied when so filed in all material respects with the Act and the applicable
rules and regulations of the Commission thereunder, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Registration
Statement and the Prospectus (including, without limitation, the Section
entitled "Arrangements between Lucent and Our Company") do not 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 in order to make the
statements therein, in
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light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon written information
furnished to the Company by or on behalf of the Underwriter or the Selling
Stockholder specifically for inclusion therein.
(c) The accountants who have certified the financial statements
filed with the Commission as parts of the Registration Statement and the
Prospectus are public or certified accountants, independent with respect to the
Company, as required by the Act and the rules and regulations of the Commission
thereunder.
(d) Neither the sale of the Shares nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the terms
hereof will result in a breach of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it is bound,
or the Company's Restated Certificate of Incorporation or its Amended and
Restated By-Laws, or, to the best of its knowledge, any order, rule or
regulation applicable to the Company of any court, federal or state regulatory
body, administrative agency or other governmental body having jurisdiction over
the Company or its properties and except for the registration of the Shares and
the Rights under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
United States Securities Exchange Act of 1934 (the "Exchange Act") and
applicable state or foreign securities laws in connection with the purchase and
distribution of the Shares by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution and delivery by the
Company of, compliance by the Company with the provisions of or consummation of
the transactions contemplated by, this Agreement.
(e) The Separation and Distribution Agreement and each of the
other agreements between Lucent Technologies Inc. ("Lucent") and the Company,
which are listed in Schedule I to this Agreement (the "Ancillary Agreements"),
have been duly authorized, executed and delivered by the Company and each such
agreement constitutes a valid and binding agreement of the Company.
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(f) The compliance by the Company with all of the provisions of
the Separation and Distribution Agreement and each of the Ancillary Agreements
will not conflict with or result in a breach or the 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 of its subsidiaries is bound or to which the Company or any of
its subsidiaries is subject, nor will such actions result in any violation of
the provisions of the certificate of incorporation or by-laws of the Company or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries 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); and no consent, approval, authorization or order
of, or filing or registration with, any such 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 the Separation and
Distribution Agreement and each of the Ancillary Agreements (except for such
consents, approvals, authorizations, orders, filings, registrations and
qualifications of which the failure to obtain would not have a material adverse
effect on the Company and its subsidiaries taken as a whole).
3. Representations and Warranties of the Selling Stockholder.
The Selling Stockholder represents and warrants to, and agrees with, the
Underwriter that:
(a) The Selling Stockholder is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Selling Stockholder has all requisite corporate power and authority to enter
into this Agreement and to perform its obligations hereunder. This Agreement has
been duly executed and delivered by the Selling Stockholder and constitutes a
legal, valid and binding obligation of the Selling Stockholder, enforceable
against the Selling Stockholder in accordance with its terms.
(b) No consent, approval, license, permit, order or authorization
of, or registration, declaration or filing with, any Federal, state, local or
foreign government or any court of competent jurisdiction, administrative agency
or commission or other governmental authority or instrumentality, domestic or
foreign or nongovernmental third party is required to be obtained or made by or
with respect to the Selling Stockholder in connection with the
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execution, delivery and performance of this Agreement except as has been
previously obtained or made.
(c) The Selling Stockholder has good and valid title to the
Shares, free and clear of any liens, claims, encumbrances, security interests,
options, charges or restrictions of any kind. Other than this Agreement, the
Shares are not subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding, including any such
agreement, arrangement, commitment or understanding restricting or otherwise
relating to the voting, dividend rights or disposition of the Shares.
(d) Neither the sale of the Shares being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms hereof
by such Selling Stockholder will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter or by-laws of such
Selling Stockholder or the terms of any indenture or other agreement or
instrument to which such Selling Stockholder or any of its subsidiaries is a
party or bound, or any judgment, order or decree applicable to such Selling
Stockholder or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
such Selling Stockholder or any of its subsidiaries.
(e) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any supplements thereto made in
reliance upon and in conformity with information furnished in writing to the
Company by the Selling Stockholder specifically for use in connection with the
preparation thereof, such Selling Stockholder hereby makes the same
representations and warranties to the Underwriter as the Company makes to the
Underwriter under paragraph (b) of Section 2.
Any certificate signed by any officer of the Selling Stockholder
and delivered to the Underwriter or Underwriter's counsel in connection with the
offering of the Shares shall be deemed a representation and warranty by such
Selling Stockholder, as to matters covered thereby, to the Underwriter.
4. Purchase and Sale of Shares. On the basis of the
representations and warranties and on the terms and subject to the conditions
herein set forth, the Underwriter agrees to purchase from the Selling
Stockholder, and on the terms and subject to the conditions herein set forth,
the
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Selling Stockholder agrees to sell to the Underwriter, Firm Shares at a price of
$ per share (the "Purchase Price").
The Selling Stockholder agrees to, on the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, sell to the Underwriter up to Additional Shares,
and the Underwriter shall have a right to purchase in one or more instances,
severally and not jointly, up to Additional Shares at the Purchase Price.
If the Underwriter elects to exercise such option, the Underwriter shall so
notify the Selling Stockholder 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 Underwriter 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 nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares.
The terms of the public offering of the Shares are as set forth
in the Prospectus.
5. Closing. Delivery of, and payment of the Purchase Price for,
the Firm Shares which the Underwriter agrees to purchase shall be made at the
office of Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, at 10:00 a.m.(1) on March , 2001 or at such other place or time
on the same or such other day as shall be agreed upon by the Company, the
Selling Stockholder and the Underwriter. The time and date for such payment and
delivery are herein referred to as the "Closing Date".
Payment for any Additional Shares shall be made to the Selling
Stockholder in New York City against delivery of such Additional Shares for the
account of the Underwriter at 10:00 a.m., New York City time, on the date
specified in the notice described in this Section 5 or at such other time on the
same or on such other date, in any event not later than April , 2001, as shall
be designated in writing by the Underwriter. The time and date of such payment
are hereinafter referred to as the "Option Closing Date."
Certificates for each of the Firm Shares and Additional Shares
shall be in definitive form and registered
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(1) Times mentioned herein are New York time.
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in such names and in such denominations as the Underwriter shall request in
writing not later than two full business days 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 the Underwriter on the
Closing Date or the Option Closing Date, as the case may be, for the account of
the Underwriter. The Selling Stockholder will pay all applicable state transfer
taxes, if any, involved in the transfer to the Underwriter of the shares to be
purchased by the Underwriter from the Selling Stockholder; and the Underwriter
will pay any additional stock transfer taxes involved in further transfers.
The Selling Stockholder agrees to make the Shares available to
the Underwriter for examination at a place to be mutually agreed upon, New York,
New York, not later than 2:00 p.m. on the business day next preceding the
Closing Date or the Option Closing Date, as the case may be.
6. Payment. At the Closing Date or Option Closing Date, as the
case may be, the Selling Stockholder will cause the Shares to be delivered to
the account of the Underwriter against payment of the Purchase Price of such
Shares in Federal or other funds immediately available.
7. Covenants of the Company.
(i) The Company agrees as follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement or the Prospectus of which the Underwriter shall not
previously have been advised or which shall be disapproved by Xxxxx Xxxx &
Xxxxxxxx, which firm is acting as counsel for the Underwriter.
(b) The Company will deliver to the Underwriter a reasonable
number of copies of the registration statement as originally filed and of all
amendments thereto up to the Closing Date. Promptly upon the filing with the
Commission of any amendment to the Registration Statement or of any supplement
to or amendment of the Prospectus, the Company will deliver to the Underwriter a
reasonable number of copies thereof.
(c) The Company will advise the Underwriter promptly (confirming
such advice in writing) of any official request made by the Commission for an
amendment to the Registration Statement or Prospectus or for additional
information with respect thereto and of any official notice of the institution
of proceedings for, or of the entry of, a
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stop order suspending the effectiveness of the Registration Statement. The
Company will use its best efforts to prevent the issuance of any such stop order
and, if such a stop order should be entered, the Company will make every
reasonable effort to obtain the lifting or removal thereof as soon as possible.
(d) The Company will pay all expenses in connection with the
preparation and filing of the Registration Statement and the printing of the
copies of any preliminary prospectus and of the Prospectus to be furnished as
provided in the first sentence of subparagraph (f) below; but will not pay any
transfer taxes. The Company will not be required to pay any amount for any
expenses of the Selling Stockholder or the Underwriter, except the cost of
mailing to the Underwriter of copies of the Registration Statement and all
amendments thereto, the preliminary prospectuses and the Prospectus, except as
provided by subparagraph (e) below. The Company will not in any event be liable
to the Underwriter for damages on account of loss of anticipated profits.
(e) The Company will use its best efforts to qualify the Shares,
or to assist in the qualification of the Shares by or on behalf of the
Underwriter, for offer and sale under the securities or Blue Sky laws of such
states of the United States as the Underwriter may designate, and will pay or
reimburse the Underwriter for counsel fees, filing fees and out-of-pocket
expenses in connection with such qualifications; provided,however, that the
Company shall not be required (i) to qualify as a foreign corporation or to file
a general consent to the service of process in any state or (ii) to pay, or to
incur, or to reimburse the Underwriter for, any such expenses if no Shares are
delivered to and purchased by the Underwriter hereunder because of the
termination of this Agreement pursuant to Section 10 hereof.
(f) The Company will furnish to the Underwriter as many copies of
the Prospectus as the Underwriter may reasonably request for the purpose
contemplated by the Act. If, during such period after the first date of the
public offering of the Shares as, in the opinion of the counsel for the
Underwriter, the Prospectus is required by law to be delivered, any event shall
occur which should be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading, the Company will,
upon the occurrence of each such event, forthwith at its expense, prepare and
furnish to the Underwriter as many copies as the Underwriter may reasonably
request for the purposes contemplated by the Act of a supplement to or
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amendment of the Prospectus which will supplement or amend the Prospectus so
that, as supplemented or amended, it will not at the date of such supplement or
amendment contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statement therein not misleading.
For the purpose of this subparagraph (f), the Company will furnish such
reasonable information with respect to itself as the Underwriter may from time
to time request, and the Underwriter, at its own expense, may visit any of the
properties of the Company and may inspect the books of accounts of the Company
at any reasonable time. Notwithstanding any of the other provisions of this
subparagraph (f), the Company shall not be under any obligation to furnish any
supplement to or amendment of the Prospectus on account of any change in, or to
include in any amended prospectus any change in, the information furnished to
the Company by the Underwriter on its behalf for use in the Prospectus, unless
the Underwriter has advised the Company in writing of such change and has
requested the Company at the expense of the Underwriter to prepare a supplement
to or amendment of the Prospectus to reflect such change or to include such
change in an amended prospectus.
(g) The Company will cause to be made generally available to its
security holders as soon as practicable, but in any event not later than ,
an earnings statement or statements which shall meet the requirements of Section
11(a) of the Act and Rule 158 promulgated thereunder.
(ii) The Selling Stockholder agrees with the Underwriter that:
(a) Such Selling Stockholder will not, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated, offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, or file (or participate in the filing of) a registration statement
with the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act with respect to, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable
for such capital stock, or
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publicly announce an intention to effect any such transaction, for a period of
180 days after the date of the Underwriting Agreement, other than shares of
Common Stock disposed of as bona fide gifts approved by Xxxxxx Xxxxxxx & Co.
Incorporated
(b) Such Selling Stockholder will pay all expenses it incurs as a
Selling Stockholder.
8. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase and pay for the Shares shall be
subject to the following additional conditions:
(a) At the Closing Date no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
be in effect and no proceedings for that purpose shall be pending before or
threatened by the Commission, and the Underwriter shall have received a
certificate dated the day of closing and signed by a Vice President of the
Company to the effect that no such stop order is in effect and, to the knowledge
of the Company, no proceedings for such purpose are pending before, or
threatened by, the Commission.
(b) At or prior to the Closing Date, the Underwriter shall have
received from Cravath, Swaine & Xxxxx, counsel for the Company, an opinion,
satisfactory to Xxxxx Xxxx & Xxxxxxxx, to the effect that:
(i) The Company is a corporation in good standing, duly organized
and validly existing under the laws of the State of Delaware; and is
authorized by its Certificate of Incorporation to transact the business
in which it is engaged, as set forth in the Prospectus;
(ii) the Company is duly qualified to transact the business in
which it is engaged, as set forth in the Prospectus, in each State in
the United States in which it operates;
(iii)each of this Agreement and the Rights Agreement has been
duly authorized, executed and delivered on behalf of the Company and is
valid and binding on the Company, except as rights to indemnify and
contribution hereunder may be limited under applicable law;
(iv) all consents, approvals, authorizations or others orders of
U.S. regulatory authorities legally required for the issuance and sale
of the Shares to the
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Underwriter pursuant to the terms of this Agreement, have been obtained,
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; and
(v) such counsel (A) is of the opinion that 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, (B)has 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) 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 (C) has 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) the
Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
The opinion specified in clause (ii) above may be delivered by
Xxxx X. Xxxxxx, Senior Vice President and General Counsel of the Company, in
lieu of Cravath, Swaine & Xxxxx.
(c) At or prior to the Closing Date, the Underwriter shall have
received from Xxxxx Xxxx & Xxxxxxxx an opinion to the effect specified in
clauses (i), (iii), (iv) and (v) of subparagraph (b) above.
(d) The Selling Stockholder shall have requested and caused Xxxxx
Xxxx & Xxxxxxxx, counsel for the Selling Stockholder, to have furnished to the
Underwriter its opinion dated the Closing Date and addressed to the Underwriter,
to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and the Selling Stockholder has
full legal right and authority to sell, transfer and deliver in the
manner
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provided in this Agreement the Shares being sold by such Selling
Stockholder hereunder;
(ii) the Selling Stockholder has good and valid title to the
Shares, free and clear of any liens, claims, encumbrances, security
interests, options, charges or restrictions of any kind. Other than this
Agreement, the Shares are not subject to any voting trust agreement or
other contract, agreement, arrangement, commitment or understanding,
including any such agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting, dividend rights or
disposition of the Shares.
(iii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein, except such
as may have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriter and such
other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Shares being sold by the Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by the Selling Stockholder or the fulfillment of the terms
hereof by the Selling Stockholder will conflict with, result in a breach
or violation of, or constitute a default under any law or the charter or
by-laws of the Selling Stockholder or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Selling Stockholder or any of its subsidiaries is a party or bound, or
any judgment, order or decree known to such counsel to be applicable to
the Selling Stockholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Selling Stockholder or any of its
subsidiaries.
(e) The Selling Stockholder shall have furnished to the
Underwriter a certificate, signed by an authorized officer of the Selling
Stockholder, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Prospectus,
any supplement to the Prospectus and this Agreement and that the representations
and warranties of the Selling Stockholder in this Agreement are true and correct
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in all material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(f) At the date hereof and at or prior to the Closing Date, the
Underwriter shall have received an executed copy of a letter of
PricewaterhouseCoopers LLP, addressed to the Company and to the Underwriter, to
the effect that (i) they are independent public accountants as required by the
Act and the applicable published rules and regulations of the Commission
thereunder; (ii) the audited financial statements contained in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published rules and
regulations of the Commission thereunder; and (iii) nothing has come to their
attention as the result of specified procedures not constituting an audit that
caused them to believe (A) that the unaudited financial statements, contained in
or incorporated by reference as aforesaid, do not so comply and are not fairly
presented in conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited financial statements
contained as aforesaid, (B) that there was any change in the capital stock or
long term debt of the Company, or any decrease in net assets, from the date of
the latest balance sheet which is contained in the Registration Statement, to a
date not more than five days prior to the date of such letter or (C) that there
were any decreases, as compared with the corresponding period in the preceding
year, in revenue, operating income or net income from the date of the latest
figures for such items contained in the Registration Statement to the date of
the latest available financial statements of the Company; provided that, with
respect to any of the items specified in clause (iii), such letter may contain
an exception for matters which the Registration Statement discloses have
occurred or may occur; and provided further that the letter may vary from the
requirements specified in this subparagraph in such manner as the Underwriter in
its sole discretion may determine to be immaterial or in such manner as may be
acceptable to the Underwriter.
(g) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which information
is given in the Registration Statement and the Prospectus there shall not have
been, at the Closing Date, any material adverse change, financial or otherwise,
in the condition of the Company from that set forth in the Registration
Statement and the Prospectus; the representations and warranties of the Company
herein shall be true at the Closing Date; the Company shall not have failed, at
or prior to the Closing
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Date, to have performed all agreements herein contained which should have been
performed by it at or prior to such time; and the Underwriter shall have
received, at the Closing Date, a certificate to the foregoing effect dated the
day of the closing and signed by a Vice President of the Company.
(h) The New York Stock Exchange shall have approved the Shares
for listing, subject only to official notice of issuance.
(i) The Underwriter shall have received a certificate, dated the
day of closing and signed by a Vice President or the Treasurer of Lucent, to the
effect that:
i. the Separation and Distribution Agreement and each of the
Ancillary Agreements have been duly authorized, executed and delivered
by Lucent and each such agreement constitutes a valid and binding
agreement of Lucent; and
ii. the compliance by Lucent with all of the provisions of the
Separation and Distribution Agreement and each of the Ancillary
Agreements will not conflict with or result in a breach or the 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 Lucent or any of its subsidiaries is bound or to
which Lucent or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the certificate of
incorporation or by-laws of Lucent or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Lucent or any of its subsidiaries 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); and no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution and
delivery by Lucent of, and compliance by Lucent with, the provisions of
the Separation and Distribution Agreement and each of the Ancillary
Agreements (except for such consents, approvals, authorizations, orders,
filings, registrations and qualifications the failure to obtain which
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole); and
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iii. the separation of the Company's businesses from Lucent has
occurred as described in the Prospectus.
The obligation of the Underwriter to purchase Additional Shares
hereunder are subject to the delivery to the Underwriter on the Option Closing
Date of such documents as the Underwriter 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.
In case any of the conditions specified above in this Section 8
shall not have been fulfilled, this Agreement may be terminated by the
Underwriter by delivering written notice of termination to the Company. Any such
termination shall be without liability of any party to any other party except to
the extent provided in subparagraphs (i)(d) and (i)(f) of Section 7 hereof.
9. Conditions of Selling Stockholder's Obligation. The obligation
of the Selling Stockholder to deliver the Shares upon payment therefor shall be
subject to the condition that at the Closing Date no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
be in effect and no proceedings for that purpose shall then be pending before,
or threatened by, the Commission.
In case any of the conditions specified above in this Section 9
shall not have been fulfilled, this Agreement may be terminated by the Selling
Stockholder by delivering written notice of termination to the Underwriter. Any
such termination shall be without liability of any party to any other party
except to the extent provided in subparagraphs (i)(d) and (i)(f) of Section 7
hereof.
10. Termination of Agreement. This Agreement may be terminated by
the Underwriter by delivering written notice of termination to the Company and
the Selling Stockholder at any time prior to the Closing Date, if after the
signing of this Agreement trading in securities generally on the New York Stock
Exchange shall have been materially suspended or materially limited or minimum
prices shall have been established on such Exchange (which shall not include
trading suspensions or limitations resulting from the operation of General Rules
80A and 80B of such Exchange, as amended or supplemented), or a banking
moratorium shall have been declared by either Federal or New York State
authorities.
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A termination of this Agreement pursuant to this Section 10 shall
be without liability of any party to any other party.
11. Indemnification and Contribution.
(a) The Company and the Selling Stockholder jointly and severally
agree to indemnify and hold the Underwriter, and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, harmless from and against any and all losses, claims,
damages and liabilities with respect to the Shares or any other securities of
the Company arising because the Registration Statement, any preliminary
prospectus used in connection with the offering of the Shares or the Prospectus
(if used within the period set forth in Section 7(i)(g) hereof and if used, as
amended or supplemented by all amendments or supplements thereto which have been
furnished to the Underwriter) contained or is alleged to have contained any
untrue statement of a material fact or omitted or is alleged to have omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except as to losses, claims, damages or
liabilities caused by any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished to the Company
herein or otherwise in writing by or on behalf of the Underwriter for use in
connection with the preparation of any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement thereof, provided
that the indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of the Underwriter (or to the benefit of any person
controlling the Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of Shares to any person if a copy of the
Prospectus (as amended or supplemented by all amendments or supplements thereto
which have been furnished to the Underwriter, but without exhibits) shall not
have been sent, mailed or given to such person, if required by the Act, at or
prior to the written confirmation of the sale of such Shares to such person.
(b) The Underwriter agrees to indemnify and hold the Company, its
directors, its officers who sign the registration statement, and each person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the Selling Stockholder harmless from and against any
and all losses, claims, damages and liabilities arising because the Registration
Statement or any preliminary prospectus relating to the Shares, or the
Prospectus or any amendment or supplement
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thereto contained or is alleged to have contained any untrue statement of a
material fact or omitted or is alleged to have omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which untrue statement or omission or alleged untrue statement or
omission was made in any such preliminary prospectus or in the Registration
Statement or Prospectus or any amendment or supplement thereto in reliance upon
information furnished to the Company herein or otherwise in writing by or on
behalf of the Underwriter for use in connection with the preparation thereof.
(c) The Company and the Underwriter agree that upon the
commencement of any action against it, its directors, its officers who sign the
registration statement, or any person controlling it as aforesaid in respect of
which indemnity may be sought on account of any indemnity agreement contained
herein, it will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the
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reasonable fees and expenses of any counsel retained by them and satisfactory to
the indemnifying party or parties, it being understood that the indemnifying
party or parties shall not, in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for all such indemnified
parties, which firm shall be designated in writing by the Underwriter in the
case of an action in which the Underwriter or one or more controlling persons
are indemnified parties and by the Company in the case of an action in which the
Company or any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by any indemnified party or
parties without prior written consent by the indemnifying party or parties to
such settlement.
(d) If the indemnification provided for in subparagraph (a) or
(b) of this Section 11 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
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect primarily the
relative benefits received by the Company, the Selling Stockholder and the
Underwriter from the offering of the Shares and also to reflect where
appropriate the relative fault of the Company, the Selling Stockholder and the
Underwriter in connection with the statement or omissions or alleged statements
or omissions which resulted in such losses, claims, damages, or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Company, the Selling Stockholder and of the Underwriter 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 Underwriter 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 Underwriter agree that it would not be just and equitable if
contribution pursuant to this subparagraph (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subparagraph (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages
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or liabilities referred to in this subparagraph (d) shall be deemed to include,
subject to the limitations set forth above in this Section 11, any legal or
other expenses reasonably incurred by such indemnified party in connection with
defending any such action or claim. Notwithstanding the provisions of this
subparagraph (d), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the shares of Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriter has been required to
pay, otherwise than pursuant to this subparagraph (d), 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The liability of the Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 3 hereof and
under the indemnity and contribution agreements contained in this Section 11
shall be limited to an amount equal to the initial public offering price of the
Securities sold by such Selling Stockholder to the Underwriter.
12. Miscellaneous. This Agreement shall inure to the benefit of
the Company, its directors, its officers who sign the Registration Statement,
the Selling Stockholder, the Underwriter and each controlling person referred to
in Section 11 hereof and their respective successors. Nothing in this Agreement
is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. The term "successor" as used
in this Agreement shall not include any purchaser of any of the Shares from the
Underwriter.
13. Notices. All communications hereunder shall be in writing,
and if to the Underwriter, unless otherwise provided, shall be mailed or
delivered to the Underwriter, in care of Xxxxxx Xxxxxxx & Co. Incorporated,
Attention: Managing Director, Equity Syndicate Department, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and if to the Company, unless otherwise provided, shall be
mailed or delivered to the Company attention: Chief Financial Officer, 000 Xxxxx
Xxxxxxxxx, Xxxxxxxxx, XX 00000, and if to the Selling Stockholder, in care of
Xxxxxx Xxxxxxx & Co. Incorporated, Attention: Managing Director, Equity
Syndicate Department, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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14. Governing Law. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York.
15. Survival Clause. The indemnity and contribution agreement
contained in Section 11 hereof and the representations and warranties of the
Company and the Selling Stockholder set forth in this Agreement or in any
certificate furnished pursuant hereto 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 the Underwriter or any person controlling
the Underwriter, or (iii) acceptance of and payment for the Shares.
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Please sign and return to us the enclosed duplicate of this
letter, whereupon this letter will become a binding agreement between the
Company, the Selling Stockholder and the Underwriter, in accordance with its
terms.
Very truly yours,
Agere Systems Inc.
by _________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
by Xxxxxx Xxxxxxx & Co.
Incorporated. in its
capacity as Selling
Stockholder
by ___________________
Name:
Title:
by Xxxxxx Xxxxxxx & Co.
Incorporated. in its
capacity as Underwriter
by ____________________
Name:
Title:
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1
SCHEDULE I
The following agreements between Lucent and the Company are the
"Ancillary Agreements":
Interim Services and Systems Replication Agreement;
Fiber Product Purchase Agreement;
Microelectronics Product Purchase Agreement;
ORiNOCO Product Purchase Agreement;
Employee Benefits Agreement;
Trademark License Agreement;
Trademark Assignment;
Trade Dress Assignment;
Patent and Technology License Agreement;
Patent Assignment;
Technology Assignment and Joint Ownership Agreement;
Development Project Agreement;
Joint Design Center Operating Agreement;
Tax Sharing Agreement; and
Real Estate Agreements.
