Exhibit 1.a
ROCKWELL XXXXXXX, INC.
[TITLE OF DEBT SECURITIES]
UNDERWRITING AGREEMENT
[ ], 200[ ]
To the Representative or Representatives
named in Schedule A hereto of the
Underwriters named in Schedule B hereto
Ladies and Gentlemen:
The undersigned Rockwell Xxxxxxx, Inc., a Delaware corporation (the
"Company"), confirms its agreement with the several underwriters named in
Schedule B hereto (the "Underwriters") as set forth below. If the firm or firms
listed in Schedule B hereto include only the firm or firms listed in Schedule A
hereto (the "Representatives"), then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
The Company proposes to issue and sell debt securities of the title[s]
and amount[s] set forth in Schedule A hereto (collectively, the "Purchased
Securities"), to be issued under the Indenture dated as of November 1, 2001 (the
"Indenture") between the Company and Citibank, N.A., as Trustee. The Purchased
Securities may be convertible into or exchangeable for shares of Common Stock,
par value $.01 per share, of the Company (the "Common Stock") as provided in or
pursuant to the Indenture, and Preferred Share Purchase Rights (the "Rights")
will be delivered with Common Stock upon conversion or exchange of any
convertible or exchangeable Purchased Securities to the extent required by the
Rights Agreement dated as of June 28, 2001 between the Company and Mellon
Investor Services LLC, as rights agent. The term "Purchased Securities" shall
not include the Common Stock or Rights, if any, issuable or deliverable upon
conversion or exchange of any convertible or exchangeable debt securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (Registration No. 333- )
relating to $750,000,000 of debt securities, Common Stock (including the
associated Rights), preferred stock, warrants and shares of Common Stock
(including the associated Rights), preferred stock or debt securities, if any,
issuable or deliverable upon exercise of warrants or upon conversion or exchange
of preferred stock or debt securities, and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "1933 Act"). Such Registration Statement has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such Registration Statement and the
Prospectus or Prospectuses relating to the sale of Purchased Securities by the
Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time may be amended or supplemented,
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act or otherwise (including by means of the Prospectus Supplement (as
defined below)), are in each case collectively referred to herein as the
"Registration Statement" and the "Prospectus", respectively;
provided, however, that a supplement of the Prospectus contemplated by Section
3(a), including a preliminary form of such a supplement of the Prospectus, if
any, previously filed with the Commission pursuant to Rule 424 of the 1933 Act
(collectively, a "Prospectus Supplement"), shall be deemed to have supplemented
the Prospectus only with respect to the offering of the Purchased Securities to
which it relates and such Prospectus Supplement shall be the only supplement
included in the terms "Registration Statement" or "Prospectus". If the Company
elects to rely on Rule 434 under the 1933 Act, all references to the Prospectus
shall be deemed to include, without limitation, the form of prospectus and the
term sheet, taken together, provided to the Representatives by the Company in
reliance on such Rule 434. If the Company files a registration statement to
register a portion of the Purchased Securities and relies on Rule 462(b) under
the 1933 Act for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any reference
to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333- ) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. The Company represents
and warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective complied, and as of the date
hereof comply, in all material respects with the requirements of the 1933
Act, the rules and regulations thereunder (the "Regulations"), the 1934
Act and the rules and regulations thereunder and the 1939 Act. The
Registration Statement, at the time the Registration Statement became
effective did not, and as of the date hereof does not, contain 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. The Prospectus, at the time the Registration Statement became
effective did not, and as of the date hereof does not, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply (i) to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus or (ii) to
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification under the 1939 Act (Form T-1)
(the "Form T-1") of the Trustee under the Indenture.
(b) Any documents incorporated by reference in the Registration
Statement and the Prospectus subsequent to the date hereof will, when
filed with the Commission, conform in all material respects to the
requirements of the 1934 Act and the rules and regulations thereunder, and
will not contain an 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, in the light of the circumstances under which they are
made, not misleading.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby,
2
there has been no material adverse change in the condition, financial or
otherwise, or the results of operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
(d) Each of the Company and its Significant Subsidiaries (as defined
in Rule 405 under the 1933 Act), if any (each a "Significant Subsidiary"),
has been duly incorporated or organized, is validly existing in good
standing under the laws of its state of incorporation or organization, and
has the requisite corporate power and authority to carry on its business
as currently being conducted and to own, lease and operate its properties,
and the Company is duly qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the character of the property
owned or held under lease by it makes such qualification necessary, except
in such jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability material to the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise.
(e) All of the outstanding shares of capital stock of each
Significant Subsidiary are validly issued, fully paid and nonassessable
and not subject to any preemptive rights, and all of the outstanding
shares of capital stock of each Significant Subsidiary owned by the
Company are owned by the Company, free and clear of any security interest,
mortgage, pledge, claim, lien or encumbrance (each, a "Lien").
(f) The execution and delivery of this Agreement, the Delayed
Delivery Contracts (as defined below), if any, and the Indenture and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action; each of this Agreement
and the Indenture are, and when duly executed and delivered in accordance
with their terms, the Delayed Delivery Contracts, if any, will be, valid
and legally binding agreements of the Company and will not conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party
or by which it may be bound or to which any of the property or assets of
the Company is subject, nor will such action result in any violation of
the provisions of the Restated Certificate of Incorporation, as amended,
or By-Laws of the Company or, to the best of its knowledge, any law,
administrative regulation or administrative or court decree applicable to
the Company; and no consent, approval, authorization or order of any court
or governmental authority or agency is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act, the 1939 Act, the Regulations
or state securities or Blue Sky laws.
(g) The Purchased Securities have been duly authorized for issuance
and sale pursuant to this Agreement and, when duly executed, authenticated
and delivered pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration therefor in accordance with
this Agreement, the Purchased Securities will be valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general principles of
equity (regardless of whether such enforceability is
3
considered in a proceeding in equity or at law), and will be entitled to
the benefits of the Indenture, which will be substantially in the form
heretofore delivered to you, except as supplemented to reflect the terms
of any one or more series of debt securities.
(h) The shares of Common Stock initially issuable upon the
conversion or exchange of any Purchased Securities that are convertible
into or exchangeable for shares of Common Stock have been duly authorized
and reserved for such issuance, and the shares of Common Stock, if any,
issued upon conversion or exchange of any such convertible or exchangeable
Purchased Securities in accordance with their terms will be validly
issued, fully paid and non-assessable and the associated Rights, if any,
have been duly authorized and will be validly issued; and the shareowners
of the Company have no preemptive rights with respect to the issuance of
such shares of Common Stock. All such shares of Common Stock have been
approved for listing on the New York Stock Exchange, subject to notice of
issuance.
(i) The Purchased Securities, the Indenture, the Common Stock and
the Rights, if any, conform in all material respects to all statements
relating thereto contained in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement.
(j) No strike or labor stoppage by the employees of the Company or
any subsidiary exists, or, to the knowledge of the Company, is imminent
which is expected to have a material adverse effect upon the conduct of
the business, or the earnings, operations or condition, financial or
otherwise, of the Company and its subsidiaries, considered as one
enterprise.
Any certificate signed by any officer of the Company and delivered
to you or counsel for the Underwriters in connection with an offering of the
Purchased Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments
of the Underwriters to purchase the Purchased Securities in the respective
amounts set forth on Schedule B hereto shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by wire
transfer to an account designated by the Company in immediately available funds
against delivery to you for the respective accounts of the Underwriters of the
Purchased Securities to be purchased by them. Such Purchased Securities shall be
in such denominations and registered in such names as you may request in writing
at least two business days prior to the Closing Time. Such Purchased Securities,
which may be in temporary form, will be made available for examination and
packaging by you on or before the first business day prior to the Closing Time.
4
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single temporary global security
without coupons (the "Global Debt Security") evidencing the Purchased Securities
that are in bearer form to a common Depositary for Euroclear Bank, S.A./N.V., as
operator of the Euroclear System ("Euroclear"), and for Clearstream Banking,
S.A. ("Clearstream") for credit to the respective accounts at Euroclear or
Clearstream of each Underwriter or to such other accounts as such Underwriter
may direct. Any Global Debt Security shall be delivered to you not later than
the Closing Time, against payment of funds to the Company in the net amount due
to the Company for such Global Debt Security by the method and in the form set
forth in Schedule A hereto. The Company shall cause definitive Purchased
Securities in bearer form to be prepared and delivered in exchange for such
Global Debt Security in such manner and at such time as may be provided in or
pursuant to the Indenture; provided, however, that the Global Debt Security
shall be exchangeable for definitive Purchased Securities in bearer form only on
or after the date specified for such purpose in the Prospectus.
If authorized in Schedule A hereto, the Underwriters named therein may
solicit offers to purchase debt securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit I hereto with such changes therein as the Company may approve. Any
Purchased Securities purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein referred to as "Contract Securities". As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
you at the Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Contract Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in Schedule A
hereto. At the Closing Time the Company will enter into Delayed Delivery
Contracts with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule A hereto.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
Delayed Delivery Contracts are to be only with such investors and in
such amounts as are approved by the Company. You are to submit to the Company at
least three business days prior to the Closing Time, the names of any investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Contract Securities to be purchased by
each of them, and the Company will advise you, at least two business days prior
to the Closing Time, of the names of the investors with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount
of Contract Securities to be covered by each such Delayed Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts, the
aggregate principal amount of Contract Securities will be deducted from the
aggregate principal amount of the Purchased Securities to be purchased by the
several Underwriters and the principal amount of the Purchased Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of the Purchased Securities set forth opposite each
Underwriter's name in Schedule B hereto, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company in writing; provided, however, that the aggregate
principal amount of Purchased Securities to be purchased
5
by all Underwriters shall be the aggregate principal amount of the Purchased
Securities less the aggregate principal amount of Contract Securities.
SECTION 3. Covenants of the Company. The Company covenants with each
of you and with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of the Purchased Securities covered thereby and their terms not
otherwise specified in the Indenture, the names of the Underwriters
participating in the offering and the principal amount of Purchased
Securities which each severally has agreed to purchase, the names of the
Underwriters acting as Representatives in connection with the offering,
the price at which the Purchased Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Purchased Securities.
The Company will transmit copies of the Prospectus Supplement to the
Commission for timely filing pursuant to Rule 424 of the Regulations and
will furnish to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Purchased Securities any
event shall occur or condition exist as a result of which it is necessary
to further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading
in the light of circumstances existing at the time it is delivered to a
purchaser or if it shall be necessary at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the Regulations, the Company will
promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements.
(c) The Company will make generally available to its security
holders, in each case as soon as practicable, an earnings statement (in
form complying with the provisions of Section 11(a) of the 1933 Act and
the Regulations, which need not be certified by independent certified
public accountants unless required by the 1933 Act or the Regulations)
covering a twelve month period beginning not later than the first day of
the Company's fiscal quarter next following the effective date (as defined
in Rule 158 of the Regulations) of the Registration Statement.
(d) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any supplement to the
Prospectus with respect to the Purchased Securities, other than those made
by the filing of documents pursuant to the 1934 Act, will furnish you with
copies of any such amendment or supplement proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement in a form to which you or your counsel has reasonably
objected.
6
(e) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the filing or effectiveness of any amendment to
the Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus with respect to
the Purchased Securities, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement with respect to the Purchased Securities, (iv)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus with respect to
the Purchased Securities or for additional information with respect
thereto and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed) and
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request and will also deliver to you a
conformed copy of the Registration Statement and each amendment thereto
for each of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to qualify
the Purchased Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Purchased Securities; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to take any action which
would subject it to general consent to service of process in any state in
which it is not now qualified or not now so subject. The Company will file
such statements and reports as may be required by the laws of each
jurisdiction in which the Purchased Securities have been qualified as
above provided.
(h) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of
the 1934 Act.
(i) Between the date of this Agreement and the Closing Time with
respect to the Purchased Securities covered thereby, the Company will not,
without your prior consent, offer or sell, enter into any agreement to
sell or publicly announce an intention to offer or sell, any debt
securities of the Company with a maturity of more than one year.
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase the Purchased Securities pursuant to this
Agreement are subject to the accuracy of the representations and warranties on
the part of the Company herein contained, as of the date hereof and as of the
Closing Time, to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
7
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or, to the knowledge of the
Company or the Underwriters, threatened by the Commission, (ii) the rating
assigned by any nationally recognized statistical rating organization to
any debt securities of the Company as of the date of this Agreement shall
not have been lowered since that date and no such rating agency shall have
publicly announced since that date that it is placing any debt securities
of the Company on what is commonly termed a "watch list" for possible
downgrading and (iii) the Prospectus, together with the applicable
Prospectus Supplement, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxxxx & Xxxxx LLP, counsel for the Company, in form and substance
satisfactory to you, 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.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(iii) This Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the
Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights in general and
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) The Purchased Securities have been duly authorized by all
necessary corporate action and, when duly executed and authenticated
as specified in the Indenture and delivered against payment therefor
pursuant to this Agreement and any applicable Delayed Delivery
Contract, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
the enforcement of creditors' rights in general and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and will be
entitled to the benefits of the Indenture.
8
(vi) The shares of Common Stock initially issuable upon the
conversion or exchange of any Purchased Securities that are
convertible into or exchangeable for shares of Common Stock have
been duly authorized and reserved for such issuance, and the shares
of Common Stock, if any, issued upon conversion or exchange of any
such convertible or exchangeable Purchased Securities in accordance
with their terms will be validly issued, fully paid and
non-assessable and the associated Rights, if any, have been duly
authorized and will be validly issued.
(vii) The Indenture, the Purchased Securities and any shares
of Common Stock (including the associated Rights) issuable or
deliverable upon exercise or conversion of the Purchased Securities
conform in all material respects to the descriptions thereof
contained in the Prospectus and the applicable Prospectus
Supplement.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(x) The Registration Statement and the Prospectus (other than
the financial statements and other financial and statistical data
included or incorporated by reference therein, as to which no
opinion need be rendered) complies as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act (other
than Form T-1, as to which no opinion need be rendered) and the
Regulations.
(xi) Each document, if any, filed pursuant to the 1934 Act
(other than the financial statements and other financial and
statistical data included or incorporated by reference therein, as
to which no opinion need be rendered) and incorporated by reference
in the Prospectus, complied when so filed as to form in all material
respects with the 1934 Act and the rules and regulations thereunder.
(xii) No consent, approval, authorization or order of any
court or governmental authority or agency is required in connection
with the issue and sale by the Company of the Purchased Securities
to the Underwriters, except such as may be required under the 1933
Act, the Regulations, the 1939 Act and any state securities laws,
and to the best of their knowledge and information, the execution
and delivery of this Agreement, the Delayed Delivery Contracts, if
any, and the Indenture and the consummation of the transactions
contemplated herein or therein will not conflict with or constitute
a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
9
contract, indenture, mortgage, loan agreement, note, lease or other
instrument known to them to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound, nor will such action result in any violation
of the provisions of the Restated Certificate of Incorporation, as
amended, or By-Laws of the Company, or to the best of their
knowledge any law, administrative regulation or administrative or
court decree applicable to the Company.
Such counsel shall also state that although such counsel does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement or the Prospectus (except as and to the extent described in
paragraph (vii) above), nothing has come to their attention that would
lead them to believe that the Registration Statement (other than the
financial statements and other financial and statistical data included or
incorporated by reference therein, as to which no view need be rendered),
as of the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus, as amended or supplemented at the Closing Time (other than
the financial statements and other financial and statistical data included
or incorporated by reference therein, as to which no view need be
rendered), contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(2) The favorable opinion, dated as of the Closing Time, of the
General Counsel of the Company, in form and substance satisfactory to
you, to the effect that:
(i) The Company is duly qualified as a foreign corporation and
is in good standing in the States of California and Iowa and in each
other jurisdiction wherein the character of the property owned or
held under lease by it makes such qualification necessary, except in
such jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability material to
the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise.
(ii) Each of the Significant Subsidiaries is a subsidiary of
the Company, has been duly incorporated or organized and is validly
existing in good standing under the laws of the state of its
incorporation or organization and is duly qualified and is in good
standing as a foreign corporation or other entity in each
jurisdiction wherein the character of the property owned or held
under lease by it makes such qualification necessary, except in such
jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability material to
the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise; the outstanding shares of
capital stock of each such Significant Subsidiary are validly
issued, fully paid and nonassessable; and all of such capital stock
owned by the Company is owned by the Company free and clear of any
Lien.
10
(iii) The execution and delivery of this Agreement, the
Delayed Delivery Contracts, if any, and the Indenture and the
consummation of the transactions contemplated herein or therein will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or, to the best of his or her
knowledge, by which it or any of them may be bound or to which any
of the property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended,
or By-Laws of the Company or any law, administrative regulation or
administrative or court decree applicable to the Company.
(iv) There is no litigation or governmental proceeding pending
or, to the best of his or her knowledge, threatened against the
Company or any of its subsidiaries which would affect the subject
matter of this Agreement and the Delayed Delivery Contracts, if any,
or which is required to be disclosed in the Prospectus which is not
adequately disclosed therein; and except as may be disclosed in the
Prospectus, there is no such litigation or governmental proceeding
which would have a material adverse effect on the financial position
or consolidated financial statements of the Company and its
subsidiaries as a whole.
(v) To the best of his or her knowledge, there are no
contracts which are required to be filed as exhibits to the
Registration Statement which are not so filed or which are required
to be disclosed in the Prospectus which are not adequately disclosed
therein.
(3) The favorable opinion or opinions, dated as of the Closing
Time, of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, with
respect to the incorporation of the Company, the validity of the
Purchased Securities delivered at the Closing Time, the Registration
Statement, the Prospectus and such other related matters as the
Representatives may reasonably require.
(c) At the Closing Time there shall not have been, since the date of
this Agreement, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or any development involving a prospective material adverse
change in or affecting particularly the financial condition of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and you shall have received a
certificate of the Chief Executive Officer or a Vice President of the
Company, dated as of the Closing Time, to the effect that there has been
no such material adverse change or prospective change, that the
representations and warranties of the Company contained in Section 1 are
true and correct as of the Closing Time and that the Company has complied
with all agreements on its part to be performed hereunder as of or prior
to the Closing Time.
11
(d) You shall have received from Deloitte & Touche LLP a letter,
addressed to you and dated as of the Closing Time and delivered at such
time, in form satisfactory to you and concerning such matters as you shall
reasonably request.
(e) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Purchased Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Purchased Securities as
herein contemplated shall be reasonably satisfactory in form and substance
to you and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by you by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Purchased Securities
to the Underwriters, (iii) the fees and disbursements of the Company's counsel
and accountants, the Trustee under the Indenture and the Trustee's counsel, (iv)
the qualification of the Purchased Securities under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey and
Legal Investment Survey, (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 the Prospectus, (vi) the printing and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Survey and Legal
Investment Survey, (vii) the fees of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Purchased
Securities or any Common Stock (including the associated Rights) issuable or
deliverable upon exercise or conversion of the Purchased Securities on the New
York Stock Exchange, if any.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters, reasonably incurred in
connection with the subject matter of this Agreement. The Company shall not in
any event be liable to any of the Underwriters for loss of anticipated profits
from the transactions contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
12
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Prospectus or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged
untrue statement or omission was made (x) in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus or (y) in the part of the
Registration Statement which constitutes the Form T-1;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(iii) subject to subparagraph (c), against any and all expense
whatsoever as and when incurred (including the fees and
disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under
(i) or (ii) above.
This indemnity is subject to the condition that, insofar as it
relates to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus, it shall not inure to the benefit of any
Underwriter from whom the person asserting the claim purchased the Purchased
Securities (or to the benefit of any person who controls such Underwriter) if a
copy of the Prospectus (excluding documents incorporated by reference therein),
as amended or supplemented prior to the written confirmation mentioned below,
was not delivered to such person at or prior to the written confirmation of the
sale of such Purchased Securities and the untrue statement or omission or
alleged untrue statement or omission was corrected in the Prospectus as
supplemented or amended at the time of such confirmation.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of this Agreement, is a director, officer or controlling person
of the Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
13
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus.
(c) In case any proceeding (including any governmental investigation
or proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding subsections (a)
and (b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
but failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of subsections (a) and (b)
above. The indemnifying party shall have the right to 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 as incurred 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 the indemnified party
shall have reasonably concluded that representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
for all such indemnified parties. Such separate firm shall be designated in
writing by you in the case of parties indemnified pursuant to subsection (a) of
this Section and by the Company in the case of parties indemnified pursuant to
subsection (b) of this Section. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), settle any pending or threatened proceeding in respect
of which indemnification could have been sought hereunder by such indemnified
party (whether or not the indemnified party is an actual party to such claim or
action) unless such settlement includes an unconditional release of such
indemnified party from all liability on the claims that are the subject matter
of such action.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters of the Purchased Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Purchased Securities received by the
Company on the one hand and by such Underwriters on the other hand, provided
that if the Purchased Securities are offered by Underwriters at an initial
14
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then the Company and the Underwriters of the
Purchased Securities shall contribute to such aggregate losses, liabilities,
claims, damages and expenses in such proportions as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations. 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 statement or omission.
Notwithstanding the provisions of this Section 7, (i) no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Purchased Securities purchased by it 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 and
(ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Purchased Securities to the Underwriters.
SECTION 9. Termination. You may terminate this Agreement,
immediately upon notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the date of this Agreement, any material
adverse change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in your reasonable judgment, is material and adverse, which makes
it impracticable to market the Purchased Securities or enforce contracts for the
sale of the Purchased Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the New York Stock Exchange or the Nasdaq
National Market has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either the New York Stock Exchange or the Nasdaq
15
National Market or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities. In the event of any such termination, the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Sections 8 and 13 shall
remain in effect.
SECTION 10. Default. If one or more of the Underwriters
participating in an offering of the Purchased Securities shall fail at the
Closing Time to purchase the Purchased Securities which it or they are obligated
to purchase hereunder (the "Defaulted Securities"), then you shall have the
right, within 24 hours thereafter, to make arrangements satisfactory to the
Company for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours you shall not have completed such
arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated severally to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Purchased Securities
to be purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the Closing Time, subject to termination of this Agreement as provided
in subsection (b) above, for a period of time not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at 000 Xxxxxxx Xxxx XX,
Xxxxx Xxxxxx, Xxxx 00000, attention of the Secretary with a copy to the
Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon you and the Company, and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or
16
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Purchased Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by the
laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
ROCKWELL XXXXXXX, INC.
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By: [Underwriter Representative]
By:
---------------------------
Name:
Title:
17
SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated
Representative(s):
Titles of Securities:
Amounts of Securities:
Price to Public:
Purchase Price:
Delayed Delivery -
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing -
Office for delivery of Securities:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Office for payment for Securities:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Date and time of Closing:
Office for checking Securities:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Underwriting commissions or other compensation:
Address for notices per Section 11:
SCHEDULE B
Underwriting Agreement dated
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
EXHIBIT I
ROCKWELL XXXXXXX, INC.
(A DELAWARE CORPORATION)
[TITLE OF SECURITY]
DELAYED DELIVERY CONTRACT
[Date]
ROCKWELL XXXXXXX, INC.
000 Xxxxxxx Xxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Rockwell Xxxxxxx, Inc.,
a Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned on _________________, ____ (the "Delivery Date"), _____________
principal amount of the Company's _______________________ (the "Securities"),
offered by the Company's Prospectus dated ___________, ____, as supplemented by
its Prospectus Supplement dated __________________, ____, receipt of which is
hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest from _________________, ____, to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company on the Delivery Date by wire
transfer of immediately available funds to an account designated by the Company,
upon delivery to the undersigned, at the office of [name and address] or at such
other place as the undersigned and the Company shall agree, of the Securities to
be purchased by the undersigned in definitive form and in such authorized
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _______________, ____,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement dated ______________, ____, between the Company and the
Underwriters less the principal amount thereof covered by this and other similar
contracts. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to
you 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 govern 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 of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
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.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_____________ and that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at the
address set forth below. This will become a binding contract between the Company
and the undersigned when such copy is so mailed or delivered.
2
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_________________________
(Name of Purchaser)
By: ____________________
Name:
Title:
_________________________
_________________________
(Address)
Accepted as of the date first above written:
ROCKWELL XXXXXXX, INC.
By: ________________________
Name:
Title:
3
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
4
