EXHIBIT 1.2
RAYTHEON COMPANY
29,000,000 Shares of Common Stock
TERMS AGREEMENT
October 25, 2001
Raytheon Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President and
Chief Financial Officer
Dear Ladies & Gentlemen:
On behalf of the several Underwriters named in Schedule A hereto
and for their respective accounts, we offer to purchase the securities (the
"Securities") described below on and subject to the terms and conditions of the
Underwriting Agreement attached as Schedule B hereto (the "Shelf Underwriting
Agreement"), as amended and supplemented by this Terms Agreement (as so amended
and supplemented, the "Underwriting Agreement"). Reference is made to Section
7(d) of this Terms Agreement for a list of defined terms.
The Shelf Underwriting Agreement is hereby amended and
supplemented, solely for the purposes of this Terms Agreement, as follows:
1. Introduction.
A The first sentence of Section 1 is amended by deleting the
word "debt" from the first sentence thereof.
B Section 1 is amended by deleting the second sentence thereof.
C The third sentence of Section 1 is supplemented by adding the
phrase "or classes" after the word "series."
D The first sentence of the second paragraph of Section 1 is
deleted.
E Section 1 is amended by adding the following as the final
paragraph of that section:
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The Underwriters propose to purchase from the Company
29,000,000 shares of its common stock, par value $0.01 per share (the "Firm
Securities"). In addition, the Underwriters propose that the Company grant them
an option to purchase up to an additional 2,578,900 shares (the "Option
Securities") on the terms and for the purposes set forth in Section 3. The Firm
Securities and the Option Securities, if purchased, are hereinafter collectively
called the "Securities."
2. Representations and Warranties of the Company.
A Section 2(a) is amended by deleting the phrase "A registration
statement (No. 333-44321)" and replacing it with the phrase
"The Registration Statement" (as defined in this Terms
Agreement).
B Section 2(b) is amended by deleting it in its entirety and
inserting in lieu thereof the following:
(b) On the effective date, the Registration Statement conformed in
all material respects to the requirement of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
and on the date of this Terms Agreement, the Registration Statement and the
Prospectus conformed in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents included any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions from any
such documents based upon written information furnished to the Company by any
Underwriter through the Representatives, specifically for use therein. In
addition, each document, if any, filed or to be filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in the Prospectus, complied or will comply when so filed in all
material respects with the Exchange Act and the Rules and Regulations.
C Section 2 is amended by adding the following as the final
paragraphs of that Section:
(c) No stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued and no
proceeding for that purpose has been initiated or, to the Company's knowledge,
threatened by the Commission; and no order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Rules and Regulations.
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(d) The Securities have been duly authorized by the Company and
conform to the description thereof contained in the Prospectus.
(e) The Securities, when issued and delivered in accordance with
the provisions of the Underwriting Agreement, will be duly and validly issued,
fully paid and non-assessable.
(f) There are no preemptive or other rights to subscribe for or to
purchase, nor is there any restriction on the voting or transfer of, any of the
Securities pursuant to the Company's charter or by-laws or any agreement or
instrument.
(g) The issuance and sale of the Securities and the consummation
by the Company of the transactions contemplated hereby and thereby
(collectively, the "Transactions") will not (1) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its subsidiaries is
subject, which would cause a material adverse change in the financial position,
shareholders equity or results of operations of the Company, (2) result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or (3) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets which would cause a material adverse change in
the financial position, shareholders equity or results of operations of the
Company, and (4) require any material consent, approval, authorization or order
of, or filing or registration with, any such court or governmental agency or
body for the consummation of the Transactions or the issuance and sale or
exchange of the Securities, as the case may be, except for (a) the registration
under the Act and the Rules and Regulations and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and the Rules and Regulations and applicable state securities laws
in connection with the purchase of the Securities by the Underwriters pursuant
to the Underwriting Agreement.
(h) The Company is not, and will not be after the application of
the net proceeds of the offering of the Securities, an "investment company"
within the meaning of such term under the Investment Company Act of 1940, as
amended, and the Rules and Regulations.
3. Purchase and Offering of Securities. Section 3 of the Shelf
Underwriting Agreement is hereby supplemented as follows, and to the extent the
Terms Agreement is inconsistent with the Shelf Underwriting Agreement, the Terms
Agreement will govern:
A Purchase of the Securities by the Underwriters; Grant of
Option. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, the
Underwriting Agreement, the Company hereby agrees to sell
29,000,000 Firm Securities to the several Underwriters and
each of the
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Underwriters, severally and not jointly, agrees to purchase
the number of the Firm Securities set forth opposite such
Underwriter's name in Schedule A hereto.
In addition, the Company hereby grants to the Underwriters an
option to purchase up to 2,578,900 Option Securities. Such option is granted
solely for the purpose of covering over-allotments in the sale of the Firm
Securities and is exercisable as provided below. Option Securities shall be
purchased severally for the account of the Underwriters in proportion to the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule A hereto. The respective obligations of each Underwriter with respect
to the Option Securities shall be adjusted by Credit Suisse First Boston
Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as Representatives of the
Underwriters (the "Representatives") so that no Underwriter should be obligated
to purchase Option Securities other than in 100 unit amounts.
The price of both the Firm Securities and any Option
Securities shall be $33.25 per Security.
The Company shall not be obligated to deliver any of the
Securities to be delivered on the First Delivery Date (as hereinafter defined)
or the Second Delivery Date (as hereinafter defined), as the case may be, except
upon payment for all the Securities to be purchased on such Delivery Date as
provided herein.
B Delivery of and Payment for the Securities. Delivery of and
payment for the Securities shall be made at the office of
Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, at 9:00 a.m., New York City time, on the fourth
full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement
between the Underwriters and the Company. This date and time
are sometimes referred to as the "First Delivery Date." On
the First Delivery Date, the Company, through the facilities
of The Depository Trust Company ("DTC"), shall deliver or
cause to be delivered the Securities to the Representatives
for the account of each Underwriter against payment to or
upon the order of the Company of the purchase price by wire
transfer of same-day funds to a bank account designated by
the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to the Underwriting
Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Firm Securities
will be registered in the name of Cede & Co., as nominee for
DTC.
At any time on or before the 30th day after the date of this
Underwriting Agreement the option granted above may be exercised by written
notice being given to the Company by the Underwriters. Such notice shall set
forth the aggregate number of Option Securities as to which the option is being
exercised, the names in which the Option Securities are to be registered, the
denominations in which the Option Securities are to be issued and the date and
time, as determined by the Underwriters, when the Option Securities are to be
delivered;
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provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
Option Securities are delivered are sometimes referred to as the "Second
Delivery Date" and the First Delivery Date and the Second Delivery Date are
sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Securities shall be
made at the place specified in the first sentence of the first paragraph of this
Section (or at such other place as shall be determined by agreement between the
Underwriters and the Company) at 9:00 a.m., New York City time, on the Second
Delivery Date. On the Second Delivery Date, the Company, through the facilities
of DTC, shall deliver or cause to be delivered the Option Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of same-day
funds to a bank account designated by the Company. Time shall be of the essence,
and delivery at the time and place specified pursuant to the Underwriting
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Securities shall be registered in the name
of Cede & Co., as nominee of DTC.
4. Certain Agreements of the Company.
A Section 4(f) of the Shelf Underwriting Agreement is amended by
replacing it with the following new Section 4(f):
Expenses. The Company agrees to pay (a) the fees,
disbursements and expenses of its counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Preliminary Prospectus and the Prospectus and amendments and
supplements thereto; (b) the costs incident to the authorization, issuance, sale
and delivery of the Securities and any taxes payable in connection therewith;
(c) the costs incident to the preparation, printing and filing under the Act of
the Registration Statement and any amendments and exhibits thereto; (d) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), the Preliminary Prospectus, the Prospectus and any amendment or
supplement to any such prospectus or any document incorporated by reference
therein, all as provided in this Underwriting Agreement; (e) any applicable
listing or other fees; (f) the fees and expenses of qualifying the Securities
under the securities laws of the several jurisdictions as provided in Section
4(e) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (g) the
filing fees relating to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (h) the
fees and expenses of the registrar and transfer agent of the Company, if any;
(i) any transfer taxes payable in connection with the sale of the Securities to
the Underwriters; and (j) all other costs and expenses incident to the
performance of the obligations
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of the Company under this Agreement; provided that, except as provided in
Section 8 of the Shelf Underwriting Agreement, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel.
B Section 4(g) of the Shelf Underwriting Agreement is replaced
with the following new Section 4(g):
"The Company agrees and each of its executive officers and
directors will execute and deliver an agreement, the form of
which is contained in Schedule D hereto, to the effect that he
or she will agree, not to offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to,
shares of the common stock of the Company, securities
convertible into or exchangeable or exercisable for any shares
of the Company's common stock, enter into a transaction that
would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Company's common
stock, whether any of such aforementioned transaction is to be
settled by delivery of the Company's common stock or such
other securities, in cash or otherwise, or publicly dispose
the Company's intention to make any offer, sale, disposition
or filing, without the prior written consent of Credit Suisse
First Boston Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, for a period of 90 days after the date of the
Prospectus, except that directors and executive officers of
the Company may, with the consent of the Company, (1) transfer
shares of the Company's common stock ("Common Stock") to the
Company (a) to pay for the exercise of options for Common
Stock and (b) to pay withholding taxes owed to the U.S. and
state governments in connection with the vesting of restricted
stock awards or the exercise of options for Common Stock and
(2) together transfer up to an aggregate of 50,000 shares of
Common Stock through the Company's cashless exercise mechanism
to pay for the exercise of options for Common Stock.
5. Conditions of the Obligations of the Underwriters.
A Section 5(a) and Section 5(i) are amended by replacing the
name of "Coopers & ▇▇▇▇▇▇▇ L.L.P." with the name
"PricewaterhouseCoopers L.L.P."
B The text of Section 5(b) is deleted and replaced with
"[Reserved]."
C Section 5(e) is amended as follows:
(1) All references to "▇▇▇▇▇▇ ▇. ▇▇▇▇" shall be replaced with
"▇▇▇▇ ▇. ▇▇▇▇▇▇▇".
7
(2) Paragraph (ii) of Section 5(e) is replaced by the
following new paragraph (ii):
"The Securities have been duly authorized by the Company and,
when issued and delivered in accordance with the provisions of
the Underwriting Agreement, will be duly and validly issued,
fully paid and non-assessable."
(3) The phrases "the Indenture," and "and any Delayed
Delivery Contracts" in paragraph (iii) of Section 5(e)
is deleted.
(4) Paragraph (iv) is deleted and replaced with "[Reserved]".
(5) The phrase "and any Delayed Delivery Contracts" in
paragraph (v) of Section 5(e) is deleted and the word
"have" is replaced with "has".
(6) The following new paragraph (vii) is added:
There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any
shares of common stock pursuant to the Company's charter or
by-laws or any agreement or other instrument known to such
counsel.
(7) The first sub-paragraph (i) in the last paragraph of
Section 5(e) is deleted and replaced with the following
new sub-paragraph (i):
(i) the Registration Statement, as of its effective date
and of the date of the Terms Agreement, or any amendment
or supplement to the Registration Statement or the
Prospectus, 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
(8) The clause "or with respect to the Form T-1" is deleted
in the last line of Section 5(e).
D Section 5(f) is amended as follows:
(1) The name of "Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇" is replaced
with the name "▇▇▇▇▇▇▇▇ & Worcester LLP" and the name
"▇▇▇▇▇▇ ▇. ▇▇▇▇" is replaced with the name "▇▇▇▇ ▇.
▇▇▇▇▇▇▇".
(2) Paragraph (i) is deleted in its entirety and replaced
with the following new paragraph (i):
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(i) The Securities conform in all material respects to
the descriptions thereof contained in the Prospectus.
(3) The following new paragraph replaces existing paragraph
(ii):
(ii) Based upon current law, the assumptions and facts
stated or referred to or incorporated by reference in
the Prospectus (including under the captions "Certain
U.S. Federal Tax Considerations for Non-U.S. Holders of
Our Common Stock" and "Capital Stock" in the Company's
registration statement on Form 8-A filed with the
Commission on May 1, 2001) and subject to the
qualifications and limitations set forth or incorporated
by reference in the Prospectus (including under the
captions "Certain U.S. Federal Tax Considerations for
Non-U.S. Holders of Our Common Stock" and "Capital
Stock" in the Company's registration statement on Form
8-A filed with the Commission on May 1, 2001), the
statements set forth in the Prospectus under the caption
"Certain U.S. Federal Tax Considerations for Non-U.S.
Holders of Our Common Stock", insofar as they purport to
constitute summaries of United States federal income tax
laws and regulations or legal conclusions with respect
thereto (but not insofar as they relate to expectations,
intentions or determinations), and the statements
incorporated by reference in the Prospectus Supplement
under the caption "Capital Stock" in the Company's
registration statement on Form 8-A filed with the
Commission on May 1, 2001, in so far as they purport to
constitute summaries of the terms of the Company's
common stock, constitute accurate summaries of the
matters described under such caption in all material
respects.
(4) Paragraph (iv) of Section 5(f) is replaced in its
entirety with the following:
(iv) The Registration Statement, as of its effective
date and of the date of the Terms Agreement, the
Prospectus, as of the date of the Terms Agreement, and
each amendment or supplement thereto, as of their
respective effective or mailing dates (but excluding the
financial statements and schedules and other financial
and statistical data included or incorporated by
reference therein, as to which such counsel need express
no opinion) complied as to form in all material respects
with the Act and the Rules and Regulations. In addition,
each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus
(except for financial statements and schedules as to
which such counsel need not express any opinion)
complied when so filed as to form in all material
respects with the Exchange Act and the Rules and
Regulations.
9
(5) The phrase ", the Trust Indenture Act" in paragraph (vi)
of Section 5(f) is deleted.
(6) The following new paragraph is added at the end of
Section 5(f):
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the Company,
and the Underwriters, at which the contents of the Registration Statement and
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 statements contained in the Registration
Statement and Prospectus and has not made any independent check or verification
thereof (except as set forth in paragraph (ii)), on the basis of the foregoing,
no facts have come to such counsel's attention that lead such counsel to believe
that (i) the Registration Statement, as of its effective date and of the date of
the Terms Agreement, or any amendment or supplement to the Registration
Statement or the Prospectus, 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 (ii) that the Prospectus, as of
its date and the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that such counsel need express no opinion with respect to the financial
statements, schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or Prospectus.
6. Other.
A Counterparts. The Terms Agreement may be executed in one or
more counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to
be an original but all such counterparts shall together
constitute one and the same instrument.
B Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to
affect the meaning or interpretation of, the Underwriting
Agreement.
C Incorporation By Reference; Entire Agreement. This Terms
Agreement incorporates by reference the Shelf Underwriting
Agreement, as amended and supplemented by this Terms
Agreement, and the Underwriting Agreement constitutes the
entire agreement among the parties hereto with respect to the
Securities and related matters stated herein.
10
D Definitions.
(i) Capitalized terms that are not defined in this
Terms Agreement have the meanings assigned to them in the
Shelf Underwriting Agreement, except as such terms are
modified below.
(ii) For purposes of the Underwriting Agreement, the
capitalized terms used in this Terms Agreement that are not
otherwise defined and the terms set forth below which are
defined in the Shelf Underwriting Agreement are modified as
follows:
(A) the phrase "Closing Date" in the Shelf
Underwriting Agreement shall be replaced by the
phrase "the applicable Delivery Date" as defined in
this Terms Agreement;
(B) "Preliminary Prospectus" means the
Preliminary Prospectus Supplement dated October 22,
2001 of the Company relating to the Securities,
supplementing the Prospectus (as defined in the Shelf
Underwriting Agreement);
(C) "Prospectus" means the final Prospectus
Supplement dated the date hereof of the Company
relating to the Securities, supplementing the
accompanying prospectus dated April 13, 2001;
(D) the term "Prospectus" in the Shelf
Underwriting Agreement means the "Prospectus" as
defined above;
(E) "Registration Statement" means
registration statement of the Company on Form S-3
(File No. 333-58474), which amended registration
statement of the Company on Form S-3 (File No.
333-82529). The Registration Statement also includes
any information deemed to be part of the registration
statement at the time of effectiveness pursuant to
Rule 430A under the Act, and any registration
statement of the Company filed pursuant to Rule
462(b) of the Act. Reference to the Registration
Statement includes documents incorporated therein by
reference; and
(F) the term the "Securities" in the Shelf
Underwriting Agreement means the "Securities" as
defined in this Terms Agreement.
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Please signify your acceptance of our offer by signing the
enclosed response to us on the space provided and returning it to us not later
than 5:00 pm (eastern standard time) today.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
FIRST UNION SECURITIES, INC.
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
COMMERZBANK CAPITAL MARKETS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
UBS WARBURG LLC
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
On behalf of themselves and as Representatives of the several
Underwriters,
BY: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Lodge
Name: ▇▇▇▇▇▇ ▇. Lodge
Title: Managing Director
BY: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
Schedule A
Underwriter Number of Securities
----------- --------------------
Credit Suisse First Boston Corporation................... 7,250,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated........................ 7,250,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc................................. 5,220,000
Banc of America Securities LLC........................... 1,110,700
▇.▇. ▇▇▇▇▇▇ Securities Inc............................... 1,864,700
▇▇▇▇▇▇ Brothers Inc...................................... 4,176,000
First Union Securities, Inc.............................. 701,800
▇▇ ▇▇▇▇▇ Securities Corporation.......................... 701,800
Commerzbank Capital Markets Corp......................... 181,250
Credit Lyonnais Securities (USA) Inc..................... 181,250
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.................................. 181,250
UBS Warburg LLC.......................................... 181,250
------------
Total 29,000,000
============
Schedule B
Underwriting Agreement
[attached]
Schedule B to Terms Agreement
RAYTHEON COMPANY
UNDERWRITING AGREEMENT
1. Introduction. Raytheon Company, a Delaware corporation ("Company"),
proposes to issue and sell from time to time certain of its debt securities
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). The Registered Securities will be issued under an
indenture, dated as of July 3, 1995 ("Indenture"), between the Company and The
Bank of New York, as Trustee, in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices and other
terms, with such terms for any particular series of the Registered Securities
being determined at the time of sale. Particular series of the Registered
Securities will be sold pursuant to a Terms Agreement referred to in Section 3
for resale in accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Securities". The firm or firms that agree to purchase the
Securities are hereinafter referred to as the "Underwriters" and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Sections 2(b), 5(e) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each Underwriter that:
(a) A registration statement (No. 333-44321), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering thereof,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) under the Securities Act of 1933, as amended ("Act"),
including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) On the effective date, the Registration Statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and
the rules and regulations of the Commission ("Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and on the date of each
Terms Agreement referred to in Section 3, the Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to (i)
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein or (ii) that
part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the terms of
the Securities not already specified in the Indenture, including, but not
limited to, interest, maturity, any redemption provision and any sinking fund
requirements and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery and payment (such time
and
date, or such other time not later than seven full business days thereafter as
the Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of the offering that
should be reflected in the prospectus supplement relating to the offering of the
Securities. The obligations of the Underwriters to purchase the Securities will
be several and not joint. It is understood that the Underwriters propose to
offer the Securities for sale as set forth in the Prospectus. Unless the Terms
Agreement specifies that the Securities will be issued in the form of a global
security to be deposited with a depositary, as contemplated by the Indenture,
the securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in such
names as the Underwriters may request.
If the Terms Agreement provides for the sale of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date, the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If the
Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
of Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business day prior to
the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to the Representatives one signed copy
of the Registration Statement, including all exhibits, in the form in which it
became effective and of all amendments thereto, and that, in connection with
each offering of Securities:
(a) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity
to comment on any such proposed amendment or supplement; and the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(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 an 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 made, not misleading,
or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement
or omissions or an amendment which will effect such compliance.
(c) As soon as practicable after the date of each Terms
Agreement, the Company will make generally available to its security
holders an earnings statement covering a period of at least 12 months
beginning after the latest of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11 (a) of the Act.
-2-
(d) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as are reasonably
requested.
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for distribution.
(f) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination
of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, and for any fees charged by investment
rating agencies for the rating of the Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses
and any preliminary prospectus supplements to underwriters.
(g) For a period beginning at the time of execution of the
Terms Agreement and ending 30 days after the Closing Date, without the
prior consent of the Representatives, the Company will not offer, sell,
contract to sell or otherwise dispose of any United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Coopers & ▇▇▇▇▇▇▇ L.L.P., covering such matters as
are customary for accountants' "comfort" letters for underwritten
transactions of the type contemplated by the Terms Agreement and in
form and substance reasonably satisfactory to the Representatives.
(b) If, at the date of the Terms Agreement, the financial
statements of the Defense Business of ▇▇▇▇▇▇ Electronics Corporation,
referred to in the report of Deloitte & Touche LLP dated March 21,
1997, are incorporated by reference into the Registration Statement,
then on or prior to the date of the Terms Agreement the Representatives
shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche LLP, covering such matters relating to such financial
statements as are customary for accountants' "comfort" letters for
underwritten transactions of the type contemplated by the Terms
Agreement and in form and substance reasonably satisfactory to the
Representatives.
(c) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(d) Subsequent to the execution of the Terms Agreement (i)
there shall not have occurred any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment of
a majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities or the Registered Securities; (ii) trading generally shall
not 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; (iii) trading of any securities of the Company shall
not have been suspended on any exchange or in any over-the-counter
market; (iv) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading, in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as
-3-
such term is defined for purposes of Rule 436(g)(2) under the Act; (v)
no banking moratorium shall have been declared by Federal or New York
authorities; and (vi) there shall not have occurred any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters, including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical to proceed with completion of the sale
of and payment for the Securities.
(e) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and General Counsel
for the Company, to the effect that:
(i) The Company is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, with corporate and authority to own its properties
and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which it owns or leases substantial properties or in which the
conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material
adverse effect on the Company;
(ii) The Securities have been duly authorized; the
Securities other than any Contract Securities, when executed
and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the Terms Agreement (including the provisions
of this Agreement), and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture;
(iii) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of or constitute
a default under (A) any order known to such counsel of any
governmental agency having jurisdiction over the Company or
any of its properties or any agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound or to which any of the properties of the
Company is subject, which would cause a material adverse
change in the financial position, shareholders' equity or
results of operations of the Company or affect the validity of
the Securities or the legal authority of the Company to comply
with the terms of the Securities, the Indenture or this
Agreement or (B) the charter or by-laws of the Company, and
the Company has full power and authority to authorize, issue
and sell the Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming due authorization,
execution and delivery by the Trustee) is a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except (A) as such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (B) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before
which any proceeding thereof may be brought;
(v) The Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company; and
(vi) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the transactions contemplated by the Terms Agreement
(including
-4-
the provisions of this Agreement) except such as may be
required under the Act, the Trust Indenture Act and state
securities or Blue Sky laws.
In addition, ▇▇. ▇▇▇▇ shall state that he or others working under his
supervision have participated in conferences with officers and other
representatives of the Company, outside counsel for the Company, representatives
of the independent public accountants for the Company, and the Underwriters, at
which the contents of the Registration Statement and Prospectus and related
matters were discussed and, although he is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, on the basis of the
foregoing and on his ongoing representation of the Company, no facts have come
to his attention that lead him to believe that (i) such registration statement,
at the time such registration statement became effective, or the Registration
Statement, as of the date of the Terms Agreement, or any amendment or supplement
to the Registration Statement or the Prospectus, 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 (ii) that
the Prospectus, as of its date and the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that he need express no opinion with respect to the
financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or
Prospectus or with respect to the Form T-1.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the
Company, who may rely as to the approval or consent of non-Federal
governmental authorities upon the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
referred to above, to the effect that:
(i) The Securities, other than any Contract
Securities, and the Indenture, conform, and any Contract
Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will conform in all material
respects to the descriptions thereof contained in the
Prospectus;
(ii) The Indenture has been duly qualified under the
Trust Indenture Act;
(iii) The Registration Statement has become effective
under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated;
(iv) The registration statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of
the Terms Agreement, and each amendment or supplement thereto,
as of their respective effective or mailing dates (but
excluding the financial statements and schedules and other
financial and statistical data and the Form T-1 included or
incorporated by reference therein, as to which such counsel
need express no opinion) complied as to form in all material
respects with the Act, the Trust Indenture Act and the Rules
and Regulations, as applicable;
(v) Such counsel do not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; and
(vi) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) except such as
may be required under the Act, the Trust Indenture Act and
state securities or Blue Sky laws.
-5-
(g) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, to be named in the Terms
Agreement, such opinion or opinions, dated the Closing Date, with
respect to the validity of the Securities, the Registration Statement,
the Prospectus and other related matters as they may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate,
dated the Closing Date, of any vice-president and a principal financial
or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the business,
financial position or results of operations of the Company and its
subsidiaries except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(i) The Representatives shall have received a letter, dated
the Closing Date, of Coopers & ▇▇▇▇▇▇▇ L.L.P., which reconfirms the
matters set forth in their letter delivered pursuant to subsection (a)
of this Section and covering such matters as are customary for
accountants' "comfort" letters for underwritten transactions of the
type contemplated by the Terms Agreement and in form and substance
reasonably satisfactory to the Representatives.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act 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 any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are 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 will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable (i) in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein and (ii) to any
Underwriter (or anyone controlling such Underwriter), with respect to any
preliminary prospectus or preliminary prospectus supplement, from whom the
person asserting any such loss, claim, damage or liability purchased Securities,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendment or supplements thereto) was not delivered by
or on behalf of such Underwriter to such person, if required by law to have been
so delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under
the Act 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 any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses
-6-
reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 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 subsections (a) or (b) above, notify the
indemnifying party 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
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. 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 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 any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (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 by 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.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to
-7-
each officer of the Company who has signed the Registration Statement
and to each person, if any, who controls the Company within the meaning
of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Securities under the Terms Agreement and the
aggregate principal amount of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to the reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will
not apply if the Terms Agreement specifies that such obligations and agreements
will not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Securities by the
Underwriters under the Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated 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 (excluding the matters set forth in Section 5(d)), or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of General Counsel.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
[End of Document]
ANNEX 1
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on _______, 200_)1
delayed delivery contract
[Insert date of initial public offering]
RAYTHEON COMPANY
C/O [Insert Name and address of Lead Manager]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Raytheon Company, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert -- as of the date hereof, for
delivery on ______________, 200_ ("Delivery Date"),]
$-------------------------
principal amount of the Company's _________________ ("Securities"), offered by
the Company's Prospectus dated _____________, 200_ and a Prospectus Supplement
dated _____________, 200_ relating thereto, receipt of copies of which is hereby
acknowledged, at __% of the principal amount thereof plus accrued interest, if
any, and on the further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the/each] Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of ______________________ at _____________ on [the/such]
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned [for delivery on such Delivery Date/in definitive] fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to [the/such] Delivery
Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the/each] Delivery Date shall
be subject only to the conditions that (1)investment in the Securities shall not
at [the/such]
__________
1 Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by [a copy/copies] of the opinions of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
Is it understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not to be on
a first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Very truly yours,
------------------------------------
(Name of Purchaser)
by
--------------------------------
--------------------------------
(Title of Signatory)
Accepted as of the above date,
--------------------------------
RAYTHEON COMPANY --------------------------------
(Address of Purchaser)
by
--------------------
Title:
-2-
Schedule C
[Form of Acceptance Letter by the Company]
[Letterhead of Raytheon Company]
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
_______, 2001
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
We hereby accept the offer contained in, and on the terms set
forth in, in the Terms Agreement (the "Terms Agreement") dated __________, 2001
addressed by you to us relating to ________ shares of common stock, par value
$0.01 per share.
Very truly yours,
RAYTHEON COMPANY
By:
-------------------------------
[Name]
[Title]
Schedule D
Form of Lock-Up Agreement for Executive Officers and Directors
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
The undersigned understands that you and certain other firms
propose to enter into a Terms Agreement ("Terms Agreement") dated October , 2001
providing for the purchase by you and such other firms ("Underwriters") of the
common stock ("Common Stock") of Raytheon Company (the "Company") which
incorporates, amends and supplements the Company's form of Underwriting
Agreement for Debt Securities (collectively the "Underwriting Agreement") and
that the Underwriters propose to reoffer the Common Stock to the public (the
"Offering").
In consideration of the execution of the Underwriting
Agreement by the Underwriters, and for other good and valuable consideration,
the undersigned hereby irrevocably agrees that the undersigned will not, during
the period commencing on the date of the Terms Agreement and ending 90 days
after the date of the Prospectus (as defined in the Underwriting Agreement),
without the prior written consent of Credit Suisse First Boston Corporation and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the SEC a
registration statement under the Securities Act relating to, shares of the
common stock of the Company, securities convertible into or exchangeable or
exercisable for any shares of the Company's common stock, enter into a
transaction that would have the same effect, or enter into any swap, hedge, or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Company's common stock, whether any such
aforementioned transaction is to be settled by delivery of the Company's common
stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without prior written consent of Credit Suisse First
Boston Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, it will not, during
the period commencing on the date of the Terms Agreement and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities.
2
Notwithstanding the foregoing, the undersigned may nonetheless
(a) transfer shares of Common Stock by way of testate or intestate succession or
by operation of law, (b) transfer shares of Common Stock to members of the
undersigned's immediate family or to a trust, partnership, limited liability
company or other entity, all of the beneficial interests of which are held by
the undersigned or members of the undersigned's immediate family, (c) transfer
shares of Common Stock to charitable organizations, (d) transfer shares of
Common Stock to the Company (i) to pay for the exercise of options for Common
Stock and (ii) to pay withholding taxes owed to the U.S. and state governments
in connection with the vesting of restricted stock awards or the exercise of
options for Common Stock, and (e) together with other directors and executive
officers of the Company transfer up to an aggregate of 50,000 shares of Common
Stock through the Company's cashless exercise mechanism to pay for the exercise
of options for Common Stock; provided, however, that, in the case of transfers
pursuant to clauses (a), (b) and (c) of this sentence, the transferee shall have
agreed to be bound by the restrictions on transfer contained in the immediately
preceding paragraph and such transfer is not effective until the agreement to be
bound by the restrictions on transfer is executed by the transferee, and, that,
in the case of transfers pursuant to clauses (d) and (e) of this sentence, the
undersigned shall have obtained the Company's prior consent.
In furtherance of the foregoing, the Company and its transfer
agent are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this agreement.
It is understood that, if the Company notifies you that it
does not intend to proceed with the Offering, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the common stock, the undersigned will be
released from its obligations under this agreement.
The undersigned understands that the Company and the
Underwriters will proceed with the Offering in reliance on this agreement.
Very truly yours,
By:_____________________
Name:
Title:
Dated: October ____, 2001
