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EXHIBIT 1.1
RAYCHEM CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
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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 several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein 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, 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 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"). The term "Registration
Statement" means the registration statement, including the exhibits thereto,
as amended to the date of this Agreement. The term "Basic Prospectus" means
the prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement. 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, if any, 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:
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(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) 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 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) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its 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.
(g) The Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms 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.
(h) 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 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.
(i) 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).
(j) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
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.
(k) 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
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Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(l) 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.
(m) 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.
(n) 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 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.
(o) 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.
(p) 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
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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 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 with all of the
agreements and satisfied 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
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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 has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) 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, (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 the Company's most recent annual report on
Form 10-K incorporated by reference in the Prospectus and (B)
in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such
annual report, 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
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(vi) each document filed pursuant to the Exchange
Act and incorporated by reference in 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;
(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) 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
and, when executed by the Company and 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
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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 [Notes/Debentures]" 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;
(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;
(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 and
other financial data included 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 its date 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
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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 [Notes/Debentures]"
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 validity 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 [Notes/Debentures]" 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 may state that their belief is based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification, except as specified. With respect to
subparagraph (xi) of paragraph (d) above, Xxxxx & Xxxx LLP may state that their
belief is based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents 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) The Underwriters shall have received on the Closing
Date a letter, dated the Closing Date, in form and substance
satisfactory to the Underwriters, from Price Waterhouse 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 by
reference into the Prospectus.
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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 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 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
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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 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
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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 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
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 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 the Manager, 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)
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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, 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 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 principal amounts of Offered
Securities they have purchased hereunder, and not joint.
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(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 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 that it has or they have
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agreed to purchase hereunder on such date, and the aggregate amount of Offered
Securities 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 to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate amount of Offered Securities 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
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 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 without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Offered Securities and the aggregate amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Offered Securities to be purchased on such
date, and arrangements satisfactory to the Manager and the 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
[date]
Raychem Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Raychem
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$________ aggregate [initial offering price/principal amount] of [Full title of
Debt Securities] (the "Offered Securities"). The Offered Securities will be
issued pursuant to the provisions of an Indenture dated as of ____________ (the
"Indenture") between the Company and Chase Trust Company of California, 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 names at a purchase price of ___% of the
principal amount of Offered Securities[, plus accrued interest, if any, from
[date] to the date of payment and delivery]:
Principal Amount of
Name Offered Securities
---- ------------------
Xxxxxx Xxxxxxx & Co. Incorporated
[Insert syndicate list, if any]
Total . . . . . . . . . . . . . .
The Underwriters will pay for the Offered Securities upon
delivery thereof at _____________ at ______ a.m. (New York time) on ___________,
or at such other time, not later than 5:00 p.m. (New York time) on ___________,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
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The Offered Securities shall have the terms set forth in
the Prospectus dated ___________, and the Prospectus Supplement dated
______________, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: __________ and __________ commencing
[Interest accrues from _________]
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Raychem
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
_________, 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
Acting severally on behalf of itself
and the several Underwriters named
herein
By:_____________________________
Name:
Title:
Accepted:
RAYCHEM CORPORATION
By:_________________________
Name:
Title:
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