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Exhibit 1.1
RAYCHEM CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
October 20, 1998
From time to time, Raychem Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the underwriter or the several
underwriters, as the case may be, 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 sometimes referred to as
this "Agreement". Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (Registration No. 333-31395),
including a prospectus, relating to the Offered Securities and has filed with,
or transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission (i) a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"), and
(ii) a related prospectus dated September 24, 1998 (the "Basic Prospectus"). The
term "Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term
"Prospectus" means the Basic Prospectus together with the Prospectus
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Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents incorporated
by reference therein, and the term "Registration Statement" shall include the
documents incorporated or deemed to be incorporated by reference therein. The
terms "supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the best knowledge of the Company, threatened by the Commission.
(b)(i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated or deemed to be incorporated by
reference in the Registration Statement or 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) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, 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 Section 1(b)
do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (a
"Form T-1") under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of any 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
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good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(d) Each 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.
(e) The total assets of Raychem Limited, a United Kingdom
corporation, Raychem N.V., a Belgian corporation, K.K. Raychem, a
Japanese corporation, and Raychem GmbH, a German corporation, (each a
"Subsidiary" and together, the "Subsidiaries"), excluding their
subsidiaries, and the Company, determined on a consolidated basis, are
equal to at least 70% of the total consolidated assets of Raychem
Corporation.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized by the Company and, prior to the
issuance and sale of the Offered Securities to the Underwriters, will
have been duly executed and delivered by the Company and will be a valid
and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The Offered Securities have been duly authorized and, when
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will have been duly executed by the
Company, 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 except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered 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 subsidiaries that is material to the Company and its
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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 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 or the Offered 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 Offered Securities.
(j) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business,
operations or prospects 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, to
the best knowledge of the Company, threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorporated
as required.
(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.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(o) In the ordinary course of its business, the Company conducts
a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates
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associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(p) The Company has complied, if applicable, with all provisions
of Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(q) The Company is eligible to use Form S-3 under the Securities
Act pursuant to the standards for that Form as in effect immediately
prior to October 21, 1992.
2. TERMS OF PUBLIC OFFERING. The Company is advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made to the Company by
transfer of same day funds at the time set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Offered Securities registered in such names and in such
denominations as the Manager shall request in writing not less than one full
business day prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Offered Securities to the Underwriters duly
paid.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
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
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any amendments or supplements thereto subsequent to the date of
this Agreement) that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
to the effect that:
(i) the Company 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;
(ii) each subsidiary of the Company (except for
subsidiaries organized and existing under the laws of a
jurisdiction other than the United States of America, a state
thereof or the District of Columbia) 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; each Subsidiary has been duly
incorporated under the laws of the jurisdiction of its
incorporation; Raychem Limited is validly existing as a
corporation in good standing under the laws of the United
Kingdom.
(iii) neither the execution nor the delivery by
the Company of, nor the performance by the Company of its
obligations under, this Agreement, the Indenture or the Offered
Securities will (i) contravene any provision of the Company's
certificate of incorporation or by-laws, (ii) violate any law
applicable to the Company or any of its subsidiaries, or (iii) to
the knowledge of such counsel, result in a breach or violation
of, or constitute a default (or an event which, with notice or
lapse of time or both, would become a default) under,
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(A) 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 (B) any order or decree
of any governmental body, agency or court having jurisdiction
over the Company or any of its subsidiaries.
(iv) the statements (A) in "Item 3 - Legal
Proceedings" of Part I of the Company's most recent annual report
on Form 10-K incorporated by reference in the Prospectus, and (B)
in the Company's Current Report on Form 8-K dated August 10,
1998, 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;
(v) 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 or incorporated by reference as
exhibits to the Registration Statement that are not described,
filed or incorporated as required; and
(vi) each document filed pursuant to the Exchange
Act and incorporated by reference in the Registration Statement
or the Prospectus (except for financial statements and schedules
and other financial data included therein, 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
applicable rules and regulations of the Commission thereunder.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxx White & XxXxxxxxx, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware and is duly qualified to do business and
is in good standing in the State of California;
(ii) the Company has all requisite corporate
power and corporate authority to own and operate its properties
and to carry on its business as described in the Prospectus;
(iii) this Agreement has been duly authorized by
all necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company;
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(iv) the Indenture has been duly qualified under
the Trust Indenture Act; the Indenture has been duly authorized
by all necessary corporate action on the part of the Company and
has been duly executed and delivered by the Company and (assuming
the due authorization, execution and delivery thereof by the
Trustee) the Indenture is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights
and (ii) to general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law;
(v) the Offered Securities have been duly
authorized by all necessary corporate action on the part of the
Company, have been duly executed by the Company and, when
authenticated by the Trustee in the manner provided for in the
Indenture (assuming due authorization, execution and delivery of
the Indenture by the Trustee) and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement,
will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as
to enforcement, (i) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and (ii)
to general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law, and will be
entitled to the benefits of the Indenture;
(vi) No governmental consents, approvals,
authorizations, registrations, declarations, qualifications or
filings are required in connection with the offering, issuance or
sale of the Offered Securities or for the performance by the
Company of its obligations under this Agreement, the Indenture or
the Offered Securities, except such as have been made or obtained
under the Securities Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission under the
Securities Act and the Trust Indenture Act or such as may be
required under state securities laws for the offering and sale of
the Offered Securities;
(vii) the statements (A) in the Prospectus under
the captions "Description of Offered Securities" and "Description
of Debt Securities" and (B) in the Registration Statement under
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 in all material
respects;
(viii) the Company is not an "investment company"
or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended;
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(ix) if applicable, such counsel is of the
opinion ascribed to it in the Prospectus under the caption
"Taxation" (or other similar caption, as the case may be);
(x) the Registration Statement, at the time it
became effective, and the Registration Statement and the
Prospectus, as of the date such opinion is delivered (in each
case other than the financial statements and schedules included
therein and the documents incorporated or deemed to be
incorporated by reference therein and other than any Form T-1,
with respect to which such counsel need express no opinion)
complied as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder; and
(xi) no facts have come to the attention of such
counsel that have led them to believe that the Registration
Statement, at the time the Registration Statement became
effective or as of the date such opinion is delivered, contained
or contains any untrue statement of a material fact or omitted or
omits 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 the date of the Prospectus Supplement or as
of the date such opinion is delivered, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel may state that
they express no opinion, view or belief with respect to financial
statements and schedules and other financial data included in the
Registration Statement or the Prospectus or with respect to any
Form T-1.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx & Xxxx LLP, special counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in subparagraphs
(iii), (iv), (v), (vii) (but only as to the statements in the Prospectus
under "Description of Offered Securities" and "Description of Debt
Securities"), (x) and (xi) of paragraph (d) above.
In rendering their opinion pursuant to paragraph (d) above,
Xxxxxx Xxxxxx White & XxXxxxxxx may state that the opinions set forth in
subparagraphs (iv) and (v) thereof regarding the execution, delivery,
validity, binding effect and enforceability of the Indenture and the
Offered Securities against the Company, the opinion set forth in
subparagraph (vii) thereof regarding the information in the Prospectus
under the captions "Description of Offered Securities" and "Description
of Debt Securities" and any other opinion that might be governed by the
laws of the State of New York, are rendered as if the Indenture and the
Offered Securities were governed by and construed in accordance with the
laws of the State of California but without regard to California
conflict of law principles and that such counsel does not express any
opinion, view or belief with respect to the relationship of the laws of
the State of New York to those of the State of California. With respect
to the subparagraph (xi) of paragraph (d) above, Xxxxxx Xxxxxx White &
XxXxxxxxx and Xxxxx & Xxxx LLP may state that their belief is based upon
their
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participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated or deemed to be incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated or deemed to be incorporated therein by
reference), but is without independent check or verification, except as
specified.
The opinions of the General Counsel of the Company and of Xxxxxx
Xxxxxx White & XxXxxxxxx described in paragraphs (c) and (d) above shall
be rendered to the Underwriters at the request of the Company and shall
so state therein.
(f) At the date of this Agreement, the Underwriters shall have
received a letter, dated the date of this Agreement, in form and
substance satisfactory to the Underwriters, from PricewaterhouseCoopers
LLP, the Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated or deemed to
be incorporated by reference into the Prospectus.
(g) The Underwriters shall have received from
PricewaterhouseCoopers LLP a letter dated the Closing Date to the effect
that they reaffirm the statements made in the letter furnished pursuant
to Section 4(f) above, except that the specified date referred to
therein shall be a date not more than three business days prior to the
Closing Date.
5. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy (or
photocopy thereof) of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a conformed copy of
the Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated or deemed to be incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply
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with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to maintain such qualification for
as long as the Manager shall reasonably request; provided, however, that
the Company shall not be required to file any general consent to service
of process or to qualify as foreign corporation or securities dealer in
any jurisdiction where it is not so qualified.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby and
in all other cases shall be made available not later than 45 days after
the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of the
Company substantially similar to the Offered Securities (other than (i)
the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, issuance and
delivery of the Offered Securities; (iii) the fees and disbursements of
the Company's counsel and accountants and of the Trustee and its
counsel; (iv) the qualification of the Offered Securities under state
securities or Blue Sky laws in accordance with the provisions of Section
5(d), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda; (v) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments
thereto and of any preliminary prospectus and the Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery
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to the Underwriters of copies of any Blue Sky or Legal Investment
Memoranda; (vii) any fees charged by rating agencies for the rating of
the Offered Securities; (viii) the filing fees and expenses, if any,
incurred with respect to any filing with the National Association of
Securities Dealers, Inc. made in connection with the Offered Securities;
and (ix) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors.
6. 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 Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling
person in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Manager expressly for use
therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of
the Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto but excluding documents incorporated
or deemed to be incorporated by reference therein) was not sent or given
by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of
the sale of such Offered Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 5(c)
hereof or unless the defect giving rise to such losses, claims, damages
or liabilities shall have been cured in a document incorporated or
deemed to be incorporated by reference in the Prospectus.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter
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through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either paragraph (a) or (b) of
this Section 6, 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 fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case
of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b)
above. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses,
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claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Offered
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 of the
Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on
the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the
aggregate net proceeds from the offering of such Offered Securities
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus
Supplement, bear to the aggregate public offering price of the Offered
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective
aggregate principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to
in paragraph (d) of this Section 6. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
6 are not exclusive and
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shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company,
its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
7. TERMINATION. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting 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 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
judgment of the Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Offered Securities of
any Series that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Offered Securities of such Series which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate amount of the Offered Securities of
such Series to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of Offered Securities of
such Series set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate amount of Offered Securities of such Series set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Offered Securities
of such Series which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
amount of Offered Securities of any Series that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 8 by
an amount in excess of one-ninth of such amount of Offered Securities of such
Series without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities of any Series and the aggregate amount of Offered Securities of such
Series with respect to which such default occurs is more than one-tenth of the
aggregate amount of Offered Securities of such Series to be purchased on such
date, and arrangements satisfactory to the Manager and the
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Company for the purchase of such Offered Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
9. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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UNDERWRITING AGREEMENT
October 20, 1998
Raychem Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Dear Sirs and Mesdames:
We (collectively, 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
Raychem Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell $400,000,000 aggregate principal amount of its 7.20% Notes due 2008
(the "Offered Securities"). The Offered Securities will be issued pursuant to
the provisions of an Indenture dated as of October 23, 1998 (the "Indenture")
between the Company and Chase Manhattan Bank and Trust Company, National
Association, as trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Offered Securities set forth below
opposite their respective names at a purchase price of 99.024% of the principal
amount of the Offered Securities, plus accrued interest from October 15, 1998 to
the date of payment and delivery:
Principal Amount of
Name Offered Securities
-------------------------------------- -------------------
Xxxxxx Xxxxxxx & Co. Incorporated $220,000,000
Chase Securities Inc. 60,000,000
X.X. Xxxxxx Securities Inc. 60,000,000
NationsBanc Xxxxxxxxxxx Securities LLC 60,000,000
-----------
Total........................ $400,000,000
===========
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Xxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, at
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7:00 a.m. (San Francisco time) on October 23, 1998, or at such other time, not
later than 5:00 p.m. (New York time) on October 30, 1998, as shall be designated
by the Manager. The time and date of such payment and delivery are hereinafter
referred to as the "Closing Date".
The Offered Securities shall have the terms set forth in the
Prospectus dated September 24, 1998, and the Prospectus Supplement dated October
20, 1998, including the following:
Maturity Date: October 15, 2008
Interest Rate: 7.20% per annum (the "Original Interest Rate"); provided
that if, on any date (a "Step-up Date") during the
period (the "Four Year Period") beginning on October 23,
1998 (the "Original Issue Date") and ending on the date
which is the fourth anniversary of the Original Issue
Date, the rating on the Notes is decreased to below
Investment Grade (as defined) by either of the Rating
Agencies (as defined), then the interest rate on the
Notes shall be automatically increased, effective from
and including the Step-up Date, to a per annum rate (the
"Step-up Rate") equal to the sum of Original Interest
Rate plus 100 basis points; and provided, further, that
if, on any date (a "Step-down Date") (whether during or
after the Four Year Period) when the interest rate on
the Notes is the Step-up Rate, the rating on the Notes
shall be increased so that the Notes are rated as
Investment Grade by both Rating Agencies, then the
interest rate on the Notes shall be automatically
decreased, effective from and including the Step-down
Date, to the Original Interest Rate; it being understood
that the interest rate on the Notes may from time to
time be increased to the Step-up Rate (but only during
the Four Year Period) and, if so increased, thereafter
decreased to the Original Interest Rate (both during and
after the Four Year Period) as set forth in the provisos
to this sentence. For purposes of the preceding
sentence, a change in the rating on the Notes by any
Rating Agency shall be deemed to have occurred on such
date as such Rating Agency shall have publicly announced
such change.
Redemption Provisions: The Offered Securities are subject to redemption at the
option of the Company on the terms set forth in
the preliminary Prospectus Supplement dated
September 24, 1998; provided that the discount
rate used for purposes of calculating the
redemption price shall be the Treasury Rate (as
defined) plus 35 basis points.
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Interest Payment Dates: April 15 and October 15, commencing April 15, 1999
Interest accrues from October 15, 1998
Form and Denomination: The Offered Securities will be issued in permanent
global form, without coupons, in denominations of $1000
and integral multiples thereof.
Price to Public: 99.674% of the principal amount, plus accrued interest.
All provisions contained in the document entitled Raychem
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
October 20, 1998, 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.
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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.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
Acting severally on behalf of themselves and
as representatives of the several
Underwriters named herein
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Accepted:
RAYCHEM CORPORATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
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