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Exhibit 1.1
COMPAQ COMPUTER CORPORATION
(a Delaware corporation)
UNDERWRITING AGREEMENT
-------------------------
________, 200_
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UNDERWRITING AGREEMENT
________, 200_
Compaq Computer Corporation
00000 XX 000
Xxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Compaq Computer
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
[indicate currency and amount] aggregate principal amount of [full title of debt
securities] (the "Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Securities set forth below opposite their names at a purchase price of [_____%]
of the principal amount of such Securities, plus accrued interest from [Date of
Securities] to the date of payment and delivery:
Principal
Amount of
Name Securities
[Insert syndicate list] $
Total.............. $
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[The aggregate principal amount of Securities to be purchased by the
several Underwriters may be reduced by the aggregate principal amount of
Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for such Securities (less any Securities sold
pursuant to delayed delivery contracts) upon delivery thereof at the offices of
_________________ at 10:00 a.m. (New York time) on ___________, 200_, or at such
other time, not later than ____ (New York time) on _________, 200_, as shall be
jointly designated by the Manager and the Company.
The Securities shall have the terms set forth in the Prospectus dated
________ __, 2000, and the Prospectus Supplement dated ____________, 200_,
including the following:
[Terms of Securities
Maturity: __________ ___, 20__
Interest Rate: [___% per annum]
Redemption Provisions:
Interest Payment Dates: _________ ___, and _______ ___
commencing ______ ___, 200_
(Interest accrues from
__________ ___, 200_)
Form and Denomination:
[Other terms:]
[The fee to be paid to the Underwriters in respect of the Securities
purchased pursuant to delayed delivery contracts arranged by the Underwriters
shall be ___% of the purchase price of the Securities so purchased] *
All provisions contained in the document entitled Compaq Computer
Corporation Underwriting Agreement Standard Provisions (Debt) dated _________
__, 200_, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this agreement
to the same extent as if such provisions had been set forth in full herein
except that if any term defined in such document is otherwise defined herein,
the definition set forth herein shall control.
--------
* To be added only if delayed delivery contracts are contemplated.
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Please confirm your agreement by having an authorized officer sign a
copy of this agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
[MANAGER]
By [MANAGER]
By
-------------------------------------
Acting severally on behalf of
itself and the other several
Underwriters named above
Accepted:
COMPAQ COMPUTER CORPORATION
By
----------------------------------
Title:
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COMPAQ COMPUTER CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
__________, 200_
From time to time, Compaq Computer Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several Underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time debt securities to be
issued pursuant to the provisions of an indenture dated as of _____________,
2000 (as it may be supplemented or amended from time to time, the "Indenture")
between the Company and The Bank of New York, as Trustee.
The debt securities will have varying designations, maturities, rates
and times of payment of interest, selling prices, redemption terms and other
terms. Any such debt securities are herein sometimes collectively referred to as
the "Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission"), in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations thereunder (herein referred to
collectively as the "Act"), a registration statement including a prospectus
relating to the Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "prospectus supplement") specifically relating to the
Securities pursuant to Rule 424 under the Securities Act. The term "Registration
Statement" means the registration statement as amended to the date of the
Underwriting Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement or abbreviated term sheet
(other than a preliminary prospectus supplement or preliminary abbreviated term
sheet) specifically relating to the Securities. The term "preliminary
prospectus" means a preliminary prospectus supplement or preliminary abbreviated
term sheet specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms Registration Statement, Basic Prospectus,
Prospectus and preliminary prospectus shall include, in each case, the material,
if any, incorporated by reference therein.
The term Contract Securities means the Securities, if any, to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may authorize or
approve (the "Delayed Delivery Contracts"). The term "Underwriters' Securities"
means the Securities other than Contract Securities.
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The Company and the Underwriters agree as follows:
1. Sale and Purchase. If the Prospectus provides for sales of
Securities pursuant to Delayed Delivery Contracts, the Company hereby authorizes
the Underwriters to solicit offers to purchase Contract Securities on the terms
contained in the Delayed Delivery Contracts. Delayed Delivery Contracts are to
be with institutional investors approved by the Company and of the types set
forth in the Prospectus. On the Closing Date (as hereinafter defined), the
Company will pay the Manager, as compensation for the accounts of the
Underwriters, the commissions set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Securities comprising the Contract Securities shall
be deducted from the Securities to be purchased by the several Underwriters, and
the aggregate principal amount of Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Underwriters' Securities shall
be made by wire transfer of immediately available Funds to an account designated
by the Company, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date".
3. Certain Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish you, without charge, two signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated therein by reference, and any supplements and amendments
thereto as you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange
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Act"), that are deemed to be incorporated by reference in the
Prospectus, including any abbreviated term sheets.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish you a copy of each such proposed amendment
or supplement.
(c) If, at any time when a Prospectus relating to the Securities is
in the opinion of your counsel required by law to be delivered under
the Act, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, the Company will
forthwith prepare and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the
Company) to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to pay all reasonable expenses (including fees
and disbursements of counsel) in connection therewith as well as all
fees, if any, payable in connection with the review of the offering of
the Securities by the National Association of Securities Dealers, Inc.
and the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the Manager may
designate.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement or statements of the Company
which shall satisfy the provisions of Section 11(a) of the Act.
(f) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any securities of the Company
substantially similar to the Securities other than the Securities,
without the prior written consent of the Manager.
4. Reimbursement of Underwriters' Expenses. 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 in any material respect, or if for any reason the
Company shall be unable to perform its obligations under this Agreement in any
material respect, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement, with respect to themselves,
severally, for all reasonable out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with the Securities.
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5. Conditions of Underwriters' Obligations.
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 the
reasonable judgment of the Manager, is material and adverse and that
makes it, in the judgment of the Manager, impracticable to market
the Securities on the terms and in the manner contemplated in the
Prospectus.
(b) no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall
be pending before or threatened by the Commission and there shall have
been no material adverse change in the condition, financial or
otherwise, earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus;
and the Managers shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the foregoing effect. Such certificate will also
provide that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date. The officer signing such certificate may rely upon the best of
his knowledge as to proceedings pending or threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of counsel for the Company (which counsel may be in-house
counsel), dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its
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ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each of [List material subsidiaries] (each a "Material
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 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;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity;
(v) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity;
(vi) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, in the case of
Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Delayed Delivery Contracts and the Securities
will not contravene any provision of applicable law (except as the
rights to indemnity and contribution under the Agreement may be
limited by applicable law) or the certificate of incorporation or
by-laws of the
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Company or, to the best of such counsel's knowledge, any agreement
or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Indenture,
the Delayed Delivery Contracts and the Securities, except such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Securities;
(viii) the statements (A) in the Prospectus under the captions
"________," "_______," "Description of [Securities]" and "Plan of
Distribution" and (B) in the Registration Statement in Item 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;
(ix) after due inquiry, such counsel does not know of any
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 or of 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;
(x) such counsel (A) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements and
schedules as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission
thereunder, (B) 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, (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 and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) 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 (D) has no reason to believe
that (except for financial statements and
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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.
(d) The Underwriters shall have received on the Closing Date an
opinion of __________________, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 5(c)(iii),
5(c)(iv), 5(c)(v) and 5(c)(vii) (but only as to the statements in the
Prospectus under "Description of Debt Securities" and "Underwriters")
and clauses 5(c)(x)(B), 5(c)(x)(C) and 5(c)(x)(D) above.
With respect to Section 5(c)(x) above, counsel for the Company
and may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification
except as specified. With respect to clauses 5(c)(x)(B), 5(c)(x)(C)
and 5(c)(x)(D) above, [Underwriters' counsel] may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (other than the documents
incorporated by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but
are without independent check or verification except as specified.
The opinion of counsel for the company described in Section
5(c) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(e) The Underwriters shall have received, on the Closing Date, a
letter dated the Closing Date, in form and substance satisfactory to
the Underwriters, from the Company's independent public accountants,
containing statements and information of the type customarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
6. Termination of Agreement. If the sale to the Underwriters of the
Underwriters' Securities, as contemplated in this Agreement, is not carried out
by the Underwriters for any reasons permitted hereunder, or if such sale is not
carried out because the Company shall be unable to comply with any of the terms
hereof, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 4 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under the
agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
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If the Manager or any group of Underwriters elect to terminate
this Agreement as provided in this Section 6, the Company and each other
Underwriter shall be notified promptly by letter, facsimile or telegram.
7. Defaulting Underwriters. If any Underwriter or Underwriters shall
default in its or their obligation to take up and pay for the Securities to be
purchased by it or them hereunder, the non-defaulting Underwriters shall take up
and pay for (in addition to the principal amount of Securities they are
obligated to purchase hereunder) the principal amount of Securities agreed to be
purchased by all such defaulting Underwriters as hereinafter set forth;
provided, however, that in the event that the principal amount of Securities
that all Underwriters so defaulting shall have agreed but failed to take up and
pay for shall exceed 10% of the total principal amount of Securities, the
non-defaulting Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
non-defaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any non-defaulting Underwriter or the
Company. If non-defaulting Underwriters take up and pay for all Securities
agreed to be purchased by all such defaulting Underwriters, such Securities
shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as the Manager may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Securities shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of
Securities set opposite the names of such non-defaulting Underwriters herein.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Securities hereunder unless all of the Underwriters'
Securities are purchased by the Underwriters (or by substituted underwriters
selected by the Manager with the approval of the Company or selected by the
Company with the Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the Closing Date for a period not exceeding five business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any underwriter substituted under this Section 7 with like effect as
if such substituted underwriter had originally been named herein.
8. Representations and Warranties. The Company represents and warrants
to 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.
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(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder, (ii) 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, (iii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to (A) 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 expressly for use therein or (B) that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each Material Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock of each Material Subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and, except for any director's qualifying
shares, are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
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(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its term, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and general
principles of equity.
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding.
(h) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters, in the case of the
Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts, in the case of the
Contract Securities in accordance with the terms of this Agreement,
will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally and general principles of
equity.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Delayed Delivery Contracts and the Securities will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its Material Subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Material Subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the Indenture,
the Delayed Delivery Contracts or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(j) There has not occurred any 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).
(k) 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 Material
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.
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(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
9. Indemnification 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 Act, or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages
and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any Basic
Prospectus or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which made, 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 furnished to the Company in writing by any Underwriter
expressly for use therein.
(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 Act, or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in
writing by such Underwriter expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
Basic Prospectus or any preliminary prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "indemnified party") shall promptly notify
the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable 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 connection
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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 as shall be reasonable shall be
reimbursed as they are incurred. In the case of any such separate firm
for the Underwriters and such control persons of Underwriters, such
firm shall be designated in writing by the Manager. In the case of any
such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in
writing by the Company. 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 third sentence 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) If the indemnification provided for in paragraphs (a) or (b) of
this Section 9 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
and the Underwriters from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company and of the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters
shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the
Company and the total underwriting 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
Securities. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
12
17
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.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above 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 9, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 9 are several in proportion to their respective
underwriting percentages determined by the ratio which the original
purchase obligation of any Underwriter appearing in the Underwriting
Agreement (or such amount increased as provided in Section 8 above)
bears to the total purchase obligations of the Underwriters set forth
therein.
(f) The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties of the Company
contained herein shall remain operative and in full force and effect
regardless of (1) any termination of this Agreement, (2) 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 other person controlling the Company and
(3) acceptance of and payment for any of the Securities.
10. Termination in Certain Events. This Agreement shall be subject to
termination by written notice given 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 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 the reasonable judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in the
13
18
the reasonable judgment of the Manager, impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus.
11. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement between
the parties and shall become effective at such time as each of the parties shall
have signed such counterparts and shall have notified the other party thereof.
12. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company, and the controlling persons,
directors and officers referred to in Section 9 hereof, and their respective
successors, assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
14. Section Headings. The Section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
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19
SCHEDULE I
DELAYED DELIVERY CONTRACT
Compaq Computer Corporation
00000 XX 000
Xxxxxxx, Xxxxx 00000
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Compaq Computer
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned $______________________________________________
principal amount of the Company's [title of issue] (the "Securities") offered by
the Company's Prospectus dated ______ __, 2000 and Prospectus Supplement or
abbreviated term sheet dated ____________, 200_, receipt of copies of which are
hereby acknowledged, at a purchase price equal to ______% of the principal
amount of such Securities [plus accrued interest on the Securities from
____________, 200_, to the delivery date or dates thereof] [and accrued
amortization of original issue discount from _____________, 200_ to the date of
payment and delivery] and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company the principal amounts of
Securities on the delivery dates (the "Delivery Dates") set forth below:
[Plus Accrued
Interest From] [and]
[Amortization of
Original Issue
[Principal Amount] Discount From]
$
------------------- ------------------ -------------------
$
------------------- ------------------ -------------------
$
------------------- ------------------ -------------------
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made by wire transfer of immediately available
funds prior to 10:00 A.M., New York City time, on such Delivery Date, to an
account designated by the Company,
Sch.I-1
20
upon delivery to the undersigned of the Securities to be purchased by the
undersigned on such Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to such
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on each Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold and had delivered to
the underwriters (the "Underwriters") named in the Prospectus Supplement
referred to above such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that, (a) as of the date of
this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the Securities
hereby agreed to be purchased and (b) the undersigned does not contemplate
selling the Securities which it has agreed to purchase hereunder prior to the
Delivery Date therefor.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the prior written consent of the other. This
contract shall be governed by and construed in accordance with the laws of the
State of New York. This contract may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
It is understood that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the foregoing, need
not be on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract, as of the date first above
written, between the Company and the undersigned when such counterpart is so
mailed or delivered.
Sch. I-2
21
Yours very truly,
---------------------------------------
Purchaser
By:
------------------------------------
---------------------------------------
(Title)
---------------------------------------
(Address)
Accepted, as of the date
first above written:
Compaq Computer Corporation
By:
-----------------------------------
Name:
Title:
Sch. I-3
22
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone Number
Name (Including Area Code) Department
---- --------------------- ----------
Sch. I-4
