EXHIBIT 1.1
HEWLETT-PACKARD COMPANY
Debt Securities
UNDERWRITING AGREEMENT
To the Representatives named in SCHEDULE I hereto
of the Underwriters named in SCHEDULE II hereto
Ladies and Gentlemen:
Hewlett-Packard Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in SCHEDULE II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), the
principal amount of its securities identified in SCHEDULE I hereto (the
"Securities"), to be issued under an Indenture dated as of _______ __, 20__ (the
"Indenture"), between the Company and JP Morgan Trust Company, National
Association (formerly known as Chase Manhattan Bank and Trust Company, National
Association), as trustee (the "Trustee"). If the firm or firms listed in
SCHEDULE II hereto include only the firm or firms listed in SCHEDULE I hereto,
then the terms "Underwriters" and "Representatives", as used herein shall each
be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to,
and agrees with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement or statements (the file number or numbers of which is or are set
forth in SCHEDULE I hereto), including a related preliminary prospectus, on
such Form for the registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including the related preliminary prospectus, and may have filed a
preliminary prospectus in accordance with Rules 415 and 424(b), each of which
has previously been furnished to you (if so filed). The Company will next
file with the Commission one of the following: (i) prior to effectiveness of
such registration statement, a further amendment thereto, including the form
of final prospectus, (ii) after the Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and 424(b)(1) or
(4), or (iii) a final prospectus in accordance with Rules 415 and 424(b)(2)
or (5). In the case of clause (ii), the Company has included in such
registration statement or statements, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Prospectus with respect to the
Securities and the offering thereof. As filed, such amendment and form of
final prospectus, or such final prospectus, shall include all Rule 430A
Information and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed
at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary
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Prospectus) as the Company has advised you, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
The terms that follow, when used in this Agreement, shall have the
meanings indicated. The term the "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Preliminary
Prospectus" shall mean any preliminary prospectus referred to in the preceding
paragraph and any preliminary prospectus included in the Registration Statement
at the Effective Date that omits Rule 430A Information. "Prospectus" shall mean
the prospectus relating to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement or statements referred to in the preceding paragraph,
including such portions of incorporated documents as are specifically
incorporated by reference, exhibits and financial statements, in the form in
which it or they has or have or shall become effective and, in the event any
post-effective amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement or statements
as so amended. Such term shall include Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule 415",
"Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules under the Act.
"Rule 430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include such portions of documents as are specifically
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the Effective Date of the Registration Statement or the date
of such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the date
of any Preliminary Prospectus or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue statement of a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances
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under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement
or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in connection with the preparation of the Registration Statement or
the Prospectus (or any supplement thereto).
(c) The Indenture has been duly authorized, executed and delivered
by the Company, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable against the
Company in accordance with its terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, arrangement, moratorium and
other similar laws relating to or affecting the rights and remedies of creditors
generally from time to time in effect, and subject to general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law, and subject to limitations on rights to indemnification and
contribution under applicable law or equitable principles); and 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 pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, arrangement, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally from time to time in
effect, and subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and subject to
limitations on rights to indemnification and contribution under applicable law
or equitable principles).
(d) None of the issue and sale of the Securities, the consummation
of any other of the transactions herein contemplated or the fulfillment of the
terms hereof will conflict with, result in a breach of, or constitute a default
under, (i) the charter or by-laws of the Company or (ii) the terms of any
material indenture or other material agreement or instrument to which the
Company or its subsidiaries is a party or bound, or (iii) any decree or
regulation or order applicable to the Company of any U.S. Federal or California
or Delaware court, governmental authority or agency having jurisdiction over the
Company, except where the conflict or breach of which in clause (ii) or clause
(iii) above would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
SCHEDULE I hereto, the respective principal amounts of the Securities set forth
opposite each respective Underwriter's name in SCHEDULE II hereto.
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3. DELIVERY AND PAYMENT.
(a) Delivery of and payment for the Securities shall be made at
the office, on the date and at the time specified in SCHEDULE I hereto, which
date and time may be postponed by agreement between the Representatives and
the Company or as provided in Section 7 hereof (such date and time of
delivery and payment for the Securities being called the "Closing Date").
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer or transfers in
immediately available funds to an account designated by the Company. The
Securities shall be delivered in definitive global form through the
facilities of The Depository Trust Company.
(b) It is understood that the several Underwriters propose to
offer the Securities for sale to the public as set forth in the Prospectus.
4. AGREEMENTS.
The Company agrees with the several Underwriters that:
(a) The Company will use its commercially reasonable efforts to
cause the Registration Statement, and any amendment thereof, if not effective
at the Execution Time, to become effective. If the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will file the
Prospectus, properly completed, pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when the Registration Statement shall
have become effective (if not already effective), (ii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement relating to the Securities shall have become effective
(if not already effective), (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to the
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose, (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vi) when the Prospectus, and any supplement thereto, shall have
been filed (if required) by the Company. The Company will use its
commercially reasonable efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
The Company will not file any amendment of the Registration Statement
relating to the Securities or supplement to the Prospectus unless the Company
has afforded you the opportunity to review it prior to filing and will not
file any such proposed amendment or supplement to which you reasonably and
timely object.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were
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made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the rules
thereunder in any material respect, the Company will give the Representatives
prompt notice of the occurrence of such event and promptly will prepare and
file with the Commission, subject to the last sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
(c) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act) an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules
thereunder (including, at the option of the Company, Rule 158).
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date (and the Company will furnish to
counsel for the Underwriters a photocopy of one signed copy of the
Registration Statement (including exhibits and amendments)) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of any Preliminary Prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request.
(e) The Company will take such action as the Representatives
may reasonably request to qualify the Securities for sale under the laws of
such jurisdictions as the Representatives may reasonably request, and to
maintain such qualifications in effect so long as required for the
distribution of the Securities, provided that in connection therewith the
Company shall not be required to qualify to do business in any jurisdiction
or to file a consent or otherwise subject itself to service of process or
taxation in any jurisdiction where it is not already so subject.
(f) Until the earlier of the day on which the distribution of
the Securities is completed or the business day following the Closing Date,
the Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the
Act which mature more than one year after the date hereof and which are
substantially similar to such debt securities, except any proposed issuances
of debt securities with respect to which the Company has advised the
Representatives in writing prior to the execution hereof.
(g) The Company will not take, directly or indirectly, any
action intended to result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
The several Underwriters agree with the Company that:
(a) The Company will pay the expenses of printing and producing
all documents relating to the offering.
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(b) The Company will pay the reasonable fees, expenses and
disbursements of outside counsel for the Company and the Trustee relating to the
offering.
(c) The Company will pay any fees of Moody's Investors Service,
Inc. and Standard & Poor's Ratings Group, a division of the McGraw-Hill
Companies, Inc. relating to the rating of the Securities.
(d) The Company will pay the fees and disbursements of Ernst &
Young LLP relating to the preparation of the letter required by Section 5(e) of
this Agreement.
(e) The several Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes or resale of any
of the Securities by them and any advertising expenses in connection with any
offers they make.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company contained herein as of the Execution Time, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy in all material respects of
the statements of the Company made in any certificates delivered by the Company
pursuant to the provisions hereof, to the performance in all material respects
by the Company of its obligations hereunder and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus shall have been filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Assistant General
Counsel or a Senior Managing Counsel of the Company, or an outside counsel for
the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus as amended or supplemented,
except where such failure would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(B) the Securities conform in all material respects to
the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under the Trust Indenture
Act, and constitutes a legal, valid and binding obligation enforceable against
the Company in accordance with its terms (subject to
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applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
arrangement, moratorium and other similar laws relating to or affecting the
rights and remedies of creditors generally from time to time in effect, and
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and subject
to limitations on rights to indemnification and contribution under applicable
law or equitable principles); and 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 pursuant to this
Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement,
moratorium and other similar laws relating to or affecting the rights and
remedies of creditors generally from time to time in effect, and subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and subject to limitations on
rights to indemnification and contribution under applicable law or equitable
principles);
(D) the Registration Statement and any amendments
thereto have become effective under the Act; any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed
and delivered by the Company;
(F) no authorization, approval or other action by, and
no notice to, consent of, order of, or filing with, any United States Federal or
California or Delaware governmental authority or agency is required for the
consummation of the transactions contemplated herein, except such as have been
obtained under the Act, the Exchange Act and the Trust Indenture Act and such as
may be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities and such other approvals
(specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the
consummation of any other of the transactions herein contemplated or the
fulfillment of the terms hereof will conflict with, result in a breach of, or
constitute a default under, the charter or by-laws of the Company or, to such
counsel's knowledge, the terms of any Material Agreements, or any material
decree or regulation known to such counsel to be applicable to the Company of
any U.S. Federal or California or Delaware court, governmental authority or
agency having jurisdiction over the Company. "Material Agreements" means all
agreements filed as Exhibits to the Company's most recent Annual Report on Form
10-K pursuant to clause (10) of paragraph (b) of Item 601 of Regulation S-K (but
only such agreements that continue to be in effect).
Such opinion shall also include a statement that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, the independent accountants of the Company and
the underwriters at which the Registration Statement, the
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Preliminary Prospectus and the Prospectus and related matters were discussed
and, although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
Registration Statement, the Prospectus or the statements contained therein
and has made no independent check or verification thereof, on the basis of
the foregoing, no facts have come to such counsel's attention that has caused
it to believe that (i) the Registration Statement and the Prospectus (except
the financial statements and the notes thereto and financial statement
schedules and other information of an accounting, statistical or financial
nature included therein, and the Statement of Eligibility (Form T-1) included
as an exhibit to the Registration Statement, as to which such counsel need
express no view) were not appropriately responsive in all material respects
with requirements of the Act and the rules thereunder and (ii) the
Registration Statement at the Effective Date contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus as of its date and on the Closing Date includes any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading (in each case except for the financial
statements and the notes thereto and the financial statement schedules and
other information of an accounting, statistical or financial nature included
therein, and the Statement of Eligibility (Form T-1) included as an exhibit
to the Registration Statement, as to which such counsel need express no view).
Any of the statements described above may be omitted from the opinion of
such counsel; provided, however, that in such event the Company shall also have
furnished to the Representatives the corresponding opinion or statement of
Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel for the
Company, described in subsection 5(b)(ii) below.
(ii) In the event that any of the statements described in the
foregoing subsection 5(b)(i) are omitted from the opinion delivered pursuant to
such subsection, the opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel for the Company, dated the Closing Date, to the effect of
the statements so omitted.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company or public officials.
(c) The Representatives shall have received from _______________,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate signed by an officer of the Company reasonably acceptable to the
Representatives, dated the Closing Date, to the effect:
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(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date, in each case,
in all material respects, unless otherwise waived by the Representatives;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change in the
financial condition, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated in the
Prospectus.
(e) At the Closing Date, Ernst & Young LLP shall have furnished to
the Representatives a letter or letters (which may refer to a letter previously
delivered to one or more of the Representatives), dated as of the Closing Date,
in form and substance reasonably satisfactory to the Representatives, confirming
that they are independent auditors within the meaning of the Act and the
applicable published rules and regulations thereunder, stating in effect that:
(i) in their opinion the financial statements and schedules
thereto audited by such accountants and included in the Company's Annual Report
on Form 10-K and incorporated in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the published rules and
regulations thereunder with respect to financial statements and financial
statement schedules included or incorporated in annual reports on Form 10-K
under the Exchange Act;
(ii) on the basis of performing the procedures specified by
the American Institute of Certified Public Accountants for a review of the
interim financial information as described in SAS 71, INTERIM FINANCIAL
INFORMATION, on the unaudited consolidated, condensed interim financial
statements from the date of the latest audited balance sheet included or
incorporated by reference in the Registration Statement to the date of the
latest interim balance sheet included or incorporated by reference in the
Registration Statement; carrying out certain specified procedures on the latest
interim financial data made available by the Company and its consolidated
subsidiaries (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter including; a reading of
the minutes of the meetings of the stockholders and directors of the Company of
the period subsequent to the date of the most recent financial statements
incorporated in the Registration Statement and the Prospectus, nothing came to
their attention which caused them to believe that: (i) any unaudited interim
consolidated financial statements included or incorporated in the Registration
Statement and the Prospectus do not comply as to form in all material respects
with applicable accounting requirements of the Exchange Act and with the
published rules thereunder; and (ii) said unaudited financial statements are not
stated on a basis substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement and the
Prospectus; and
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(iii) they have performed certain other procedures as a result
of which they determined that the information described in a schedule to be
delivered on behalf of the Underwriters of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information that has been obtained from accounting records which are subject to
controls over financial reporting or which has been derived directly from such
accounting records by analysis or computation) set forth in the Registration
Statement, as amended, the Prospectus, as amended or supplemented, and in
Exhibit 12 to the Registration Statement (including selected accounting,
financial or statistical information included or incorporated in the Company's
Annual Report on Form 10-K incorporated in the Prospectus or any of the
Company's Quarterly Reports on Form l0-Q incorporated therein), agrees with
accounting records or compilations made from such accounting records which are
subject to controls over financial reporting or which has been derived directly
from such accounting records by analysis or computation.
References to the Prospectus in this paragraph (e) include any supplements
thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is
given in the Registration Statement and the Prospectus (exclusive of any
amendment or supplement on or after the Execution Time), there shall not have
been (i) any material change in the capital stock (other than upon exercise
of outstanding stock options) or any significant increase in long-term debt
of the Company or it Subsidiaries, taken as a whole, or (ii) any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the financial condition, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration Statement and
the Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Securities by Moody's Investor's
Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") and
neither Moody's nor S&P shall have publicly announced that it has placed any
of the Securities on a credit watch with negative implications, except as
disclosed prior to the Execution Time.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be terminated at, or at any time
prior to, the Closing Date by the Representatives. Notice of such termination
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
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6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred, as such expenses are
incurred, by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives for use in connection with
the preparation thereof, and (ii) such indemnity with respect to any Preliminary
Prospectus or supplement thereto shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if (A) such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented prior to the confirmation of the sale of such Securities to such
person) and (B) the Company had previously furnished copies of the Prospectus to
such Underwriter. This indemnity agreement will be in addition to any liability
that the Company may otherwise have.
(b) Each Underwriter severally (and not jointly) agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability that any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the _________ and
________ paragraphs under the heading "Underwriting" of the Prospectus,
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Prospectus, and you, as the
Representatives, confirm that such statements are correct.
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<Page>
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 6. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party in writing of the
commencement thereof, the indemnifying party will be entitled to appoint counsel
reasonably satisfactory to such indemnified party to represent the indemnified
party in such action; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii). No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is a party and indemnity was sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
the indemnified party from all liability on any claims that are the subject
matter of such action.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 6 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriters on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other 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 on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by
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<Page>
the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault 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 the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. Notwithstanding the provisions of this
subsection (d), (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) 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. For purposes
of this Section 6, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (y) and (z) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or
parties under this paragraph (d), notify in writing such party or parties
from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d). The Underwriters
obligations to contribute pursuant to this Section 7(d) are several in
proportion to their respective underwriting commitments as set forth on
SCHEDULE II hereto, and not joint.
7. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in SCHEDULE II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in SCHEDULE II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 7, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
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<Page>
8. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time
(i) trading in securities generally on The New York Stock Exchange or trading
of the Company's common stock on The New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities, (iii) there shall have occurred and be
continuing any major disruption of settlements of securities clearance
services in the United States, or (iv) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make it,
in the judgment of the Representatives, impracticable to market the
Securities.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Company and the
Underwriters shall remain responsible for their respective expenses and
reimbursements pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect.
10. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in SCHEDULE I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it, at Hewlett-Packard Company, 3000 Hanover Street, MS______, Palo
Alto, California 94304; attention of the Treasurer, fax (650) __________, with a
copy to the General Counsel, Hewlett-Packard Company, 3000 Hanover Street,
MS______, Palo Alto, California 94304, fax (650) __________.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 6 hereof, and no other
person will have any right or obligation hereunder.
12. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<Page>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
HEWLETT-PACKARD COMPANY
By:
-----------------------------------
Name:
The foregoing Agreement is hereby Title:
confirmed and accepted on the
date specified in SCHEDULE I hereto.
By:
By:
-----------------------------------
Name:
Title:
By:
By:
-----------------------------------
Name:
Title:
For themselves and the other several
Underwriters, if any, named in SCHEDULE II
to the foregoing Agreement.
SCHEDULE I
DEBT SECURITIES
UNDERWRITING AGREEMENT: Dated
----------------------
REGISTRATION STATEMENT NO.:
----------------------------
REPRESENTATIVES:
----------------------------
TITLE OF SECURITIES:
----------------------------
PRINCIPAL AMOUNT: $
---------------------------
INTEREST RATE: %
-----
PURCHASE PRICE: $ per $1,000 Note
------
OFFERING PRICE: $ per $1,000 Note
------
INTEREST PAYMENT DATES: and of each year, commencing , 20
---- ---- ---- --
SUBORDINATION PROVISIONS:
---------------------------
OPTIONAL REDEMPTION:
---------------------------
TAX REDEMPTION:
---------------------------
SINKING FUND PROVISIONS:
---------------------------
CLOSING DATE AND TIME:
---------------------------
METHOD OF PAYMENT:
---------------------------
OVERALLOTMENT OPTION:
---------------------------
II-1
SCHEDULE II
<Table>
<Caption>
Underwriter Amount to be Purchased
- ----------- ------------------------
- --------------------------- $ ---------
- --------------------------- $ ---------
- --------------------------- $ ---------
- --------------------------- $ ---------
=================
TOTAL $________
</Table>
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