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EXHIBIT 1(a)
TRW INC.
UNDERWRITING AGREEMENT
(COMMON STOCK)
New York, New York
[Names of Representatives], as
Representatives of the
Underwriters named in Schedule I hereto
As of ___________, ___
Dear Sirs:
TRW Inc., an Ohio corporation (the "Company"), proposes to issue and
sell to the underwriters named in Schedule I hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), ___________
shares of its common stock, par value $0.625 per share (the "Firm Shares"). The
Company also proposes to issue and sell to the Underwriters not more than an
additional _______ shares of its common stock, par value $0.625 per share (the
"Additional Shares"), if and to the extent that you, as Representatives of the
offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of common stock granted to the Underwriters in
Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares". The Shares of common stock, par value
$0.625 per share, of the Company to be outstanding after giving effect to the
sales contemplated hereby are hereinafter referred to as the "Common Stock". If
the firm or firms listed in Schedule I hereto include only the firm or firms
listed above, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") one or more
registration statements on such Form (File Number[s]: 333-______[and
333-_____]), including a basic prospectus relating to such registration
statement(s), which have become effective, for the registration under
the Act of offers and sales of shares of [describe securities covered
by Form S-3] (the "Securities"), including the Shares, producing
aggregate proceeds of up to $__________. Such registration
statement(s), as amended at the date of this Agreement, meet the
requirements set forth in Rule 415(a)(1)(ix) or (x) and comply in all
other material respects with said Rule. The Company has filed or
proposes to file with the Commission pursuant to Rule 424, a supplement
to the form of prospectus included in such registration statement(s)
relating to the Shares and the plan of distribution thereof (the
"Prospectus Supplement" and, together with any preliminary
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Prospectus Supplement and the Basic Prospectus, the "Prospectus"). Upon
the request of the Representatives, but not without the agreement of
the Representatives, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b) ("Rule 462(b)")
under the Act.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and at the
date of delivery by the Company of any Shares sold hereunder, (i) the
Registration Statement and any Rule 462(b) Registration Statement, as
amended as of any such time, and the Prospectus, as supplemented as of
any such time; (ii) the Registration Statement and any Rule 462(b)
Registration Statement, as amended as of any such time, did not or will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any of you specifically for use in the Registration
Statement or the Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement, any post-effective amendment
or amendments thereto and any Rule 462(b) Registration Statement became
or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the Registration Statement at the Effective
Date. "Prospectus" shall mean the Basic Prospectus as supplemented by
the Prospectus Supplement. "Registration Statement" shall mean the
registration statement(s) No[s]. 333-_____[and 333-_____], including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time. "Rule 415", "Rule 424" and "Rule 462(b)" refer
to such rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934 (the "Exchange
Act") on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be,
incorporated therein by reference. "Rule 462(b) Registration Statement"
shall mean a registration statement and any amendments thereto filed
pursuant to Rule 462(b) relating to the offering of the Shares.
(d) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of Ohio with corporate power and authority to
own, lease and operate its properties and to conduct the business being
conducted
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by it as described in the Prospectus; and the Company is duly qualified
as a foreign corporation to transact business in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the financial condition or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and the Company is in good standing in the State of
California and the Commonwealth of Virginia.
(e) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder and, when read together and with the other
information in the Prospectus, did not 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 were or are made, not
misleading.
(f) Financial Statements. The financial statements of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations for the periods specified; and
except as stated therein, said financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States applied on a consistent basis.
(g) Legal Proceedings; Contracts. Except as may be set forth
in the Prospectus, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, against or affecting, the Company or any of its subsidiaries,
which might, in the opinion of the Company, result in any material
adverse change in the financial position of the Company and its
subsidiaries taken as a whole, or might materially and adversely affect
the assets of the Company and its subsidiaries taken as a whole; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been so filed.
(h) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
The shares of Common Stock outstanding prior to the issuance of the
Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable. The Shares have been
duly authorized and, when issued and sold in accordance with the terms
of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of ________ per
share (the "Purchase Price") the respective number of Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto.
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On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______________
Additional Shares at the Purchase Price. If you, on behalf of the Underwriters,
elect to exercise such option, you shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date or later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 3 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto set forth opposite the name
of such Underwriter bears to the total number of Firm Shares.
3. Delivery and Payment. Payment for the Firm Shares shall be made to
the Company in federal or other funds immediately available in New York City by
wire transfer to an account designated by the Company against delivery of such
Firm Shares for the respective accounts of the several Underwriters at 10:00 AM
on ____________, 199_, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 8 hereof. The time
and date of such payment are hereinafter referred to as the "Closing Date".
Payment for any Additional Shares shall be made to the Company in
federal or other funds immediately available in New York City by wire transfer
to an account designated by the Company against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 AM on
the date specified in the notice described in Section 2 or at such other time on
the same or on such other date, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Option Closing Date".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than 1:00 PM on the business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the completion of the distribution of the Shares,
the Company will not file any amendment of the Registration Statement
or supplement to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause the
Prospectus Supplement to be filed with the Commission pursuant to the
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applicable paragraph of Rule 424 within the time period prescribed and
will provide evidence satisfactory to the Representatives of such
timely filing. Upon the request of the Representatives, the Company
will cause the Rule 462(b) Registration Statement, properly completed,
to be filed with the Commission pursuant to Rule 462(b) and will
provide evidence satisfactory to the Representatives of such filing.
The Company will promptly advise the Representatives (i) when the
Prospectus shall have been filed with the Commission pursuant to Rule
424, (ii) when any Rule 462(b) Registration Statement or any amendment
to the Registration Statement relating to the Securities shall have
become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement, any Rule 462(b) Registration
Statement or amendment of or supplement to the Prospectus or for any
additional information; (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose;
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply with
the Act or the rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Prospectus and the
Prospectus and any amendments thereof and supplements thereto, as the
Representatives may reasonably request. The Company will pay the
expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdiction as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will arrange for the determination of the legality
of the Securities for purchase by institutional investors.
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(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or any other registration statement filed under
the Act.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Shares shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date
(with respect to the Firm Shares and as of the Option Closing Date with respect
to the Additional Shares), to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Prospectus shall have been filed or mailed for
filing with the Commission not later than 5:00 P.M. New York City time
on the business day following the date hereof.
(b) The Company shall have furnished to the Representatives
the opinion of the General Counsel or an Assistant General Counsel of
the Company, dated the Closing Date to the effect that:
(i) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Ohio with full corporate power and authority to own
its properties and conduct the business now being conducted by
it, as described in the Prospectus, and is duly qualified to
do business as a foreign corporation in each jurisdiction
which requires such qualification wherein it owns or leases
material properties or conducts material business;
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof under
the caption "Description of Capital Stock" contained in the
Prospectus;
(iii) the shares of Common Stock outstanding prior to
the issuance of the Shares have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) (A) the Shares to be sold by the Company have
been duly authorized and, when issued, delivered and paid for
in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and (B) the
issuance of such Shares will not be subject to any preemptive
or similar rights;
(v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
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and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(vi) the Registration Statement and any amendments
thereto have become effective under the Act; to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto as
of their respective effective or issue dates (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) complied as to form in all material
respects with the applicable requirements of the Act and the
rules thereunder; the documents filed by the Company under the
Exchange Act and incorporated by reference into the
Registration Statement as of their respective filing dates
(other than the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the
Exchange Act and the rules thereunder; and such counsel has no
reason to believe that the Registration Statement, or any
amendment thereof, at the Effective Date or at the Execution
Time and, as amended, at the date of this Agreement, contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, as amended or supplemented, includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that such counsel need express no opinion
as to (A) the financial statements and other financial and
statistical information contained in the Registration
Statement or Prospectus or (B) the information contained in or
omitted from the Registration Statement or any amendment
thereof or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement or any amendment thereof or the Prospectus or any
amendment thereof or supplement thereto;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein,
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
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(ix) neither the issue and sale of the Shares, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the Amended Articles of Incorporation or Regulations of
the Company or the terms of any indenture, other agreement or
instrument known to such counsel and to which the Company is a
party or bound, or any order or regulation known to such
counsel to be applicable to the Company of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company; and
(x) to the best knowledge of such counsel, no holders
of securities of the Company have rights to the registration
of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Ohio or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel
for the Underwriters; (B) as to matters relating to that portion of the
Company that constituted BDM International, Inc. ("BDM") prior to its
purchase by the Company, upon the opinion of other counsel who have
represented BDM or on certificates of individuals who had been officers
of BDM prior to its purchase by the Company and (C) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
(c) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Shares, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by two executive officers of the
Company, one of whom shall be the principal financial officer,
treasurer or controller of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
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(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus.
(e) At the Closing Date, Ernst & Young LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Prospectus and reported on
by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive
committees of the Company; and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent financial statements incorporated in the Registration
Statement, as amended, and the Prospectus, as amended or
supplemented, nothing came to their attention which caused
them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply as to form
in all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified
date not more than five business days prior to the
date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the shareholders' investment
of the
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Company as compared with the amounts shown on the
most recent consolidated balance sheet included or
incorporated in the Registration Statement and the
Prospectus, or for the period from the date of the
most recent financial statements incorporated in the
Registration Statement and the Prospectus to such
specified date there were any decreases, as compared
with the corresponding period in the preceding year,
in net sales and other income, in earnings from
continuing operations before income taxes or in total
or per share amounts (primary and fully diluted) of
earnings from continuing operations or net earnings,
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives;
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement, as amended,
and the Prospectus, as amended or supplemented, and in Exhibit
12 to the Registration Statement, including the information
included or incorporated in Item 1 (excluding information
relating to backlog) and Items 6 and 7 of the Company's Annual
Report on Form 10-K incorporated therein, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
(iv) if pro forma financial information is included
or incorporated in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro
forma financial information, carrying out certain specified
procedures, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial information, nothing came to their attention which
caused them to believe that the pro forma financial
information does not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such statements.
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References to the Registration Statement and the Prospectus in
this paragraph (e) are to such documents as amended and supplemented at
the date of the letter.
In addition, at the time this Agreement is executed, Ernst &
Young LLP shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries, taken as a whole, the effect of which in any case
referred to in clause (i) or (ii) above, is, in the judgment of [the
lead Representative], so material and adverse as to make it impractical
or inadvisable to proceed with the offering or the delivery of the
Purchased Securities as contemplated by the Registration Statement and
the Prospectus.
(g) Subsequent to the execution of this Agreement, the rating
assigned by any nationally recognized securities rating agency to any
debt securities of the Company as of the date of this Agreement shall
not have been lowered nor shall any such rating agency have publicly
announced that it has placed any debt securities of the Company on what
is commonly termed a "watch list" for possible downgrading.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents, certificates, comfort letters and
opinions, dated the Option Closing Date, as you may reasonably request with
respect to the good standing of the Company, the due authorization and sale of
the Additional Shares and other matters related to the sale of the Additional
Shares and, confirming, as of the Option Closing Date, various of the matters
referred to in this Section 5.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all reasonable
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out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities but the Company shall be under no further liability
to the Underwriters with respect to such Securities except as provided in
Section 7 hereof.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several (including
amounts paid in settlement of any litigation if such settlement is effected with
the written consent of the Company), to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Shares as
originally filed or in any amendment thereof, or in the Basic Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to the Basic Prospectus or any
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Shares which are the subject thereof if
such person did not receive a copy of the Prospectus (as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Shares to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Prospectus was corrected in the Prospectus (as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party, under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it
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may have to any indemnified party, otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party, or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
of this Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, 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 from the
offering of the Shares 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 in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the
Purchased Securities shall be deemed to be in the same proportion as the total
net proceeds from the offering of such Purchased Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company on the one hand and of the Underwriters on the other 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.
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The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to in the immediately preceding paragraph. 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 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten and distributed to the public by such
Underwriter were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several, in proportion to the respective
principal amounts of Purchased Securities purchased by each of such
Underwriters, and not joint.
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall fail
to purchase and pay for Shares that it has or they have agreed to purchase
hereunder on such date and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase on such date. If, on the Closing Date, any Underwriter or
Underwriters shall fail to purchase and pay for Firm Shares and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Firm Shares, and if such non-defaulting Underwriters do not purchase all the
Firm Shares, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case the Representatives
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. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail to purchase and pay for Additional Shares and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. 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.
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9. Termination. (a) This Agreement may be terminated for any reason, at
any time by either the Company with respect to any Underwriter or any
Underwriter with respect to itself, upon the giving of thirty (30) days' written
notice of such termination to each other party hereto.
(b) An Underwriter may terminate this Agreement, immediately
upon notice to the Company, at any time prior to the Closing Date (i)
if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Registration
Statement, any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and
its subsidiaries, shall have occurred the effect of which is, in the
judgment of [the lead Representative], so material and adverse to the
Company and its subsidiaries taken as a whole as to make it impractical
or inadvisable to proceed with the delivery of such Shares or (ii) if
there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the
effect of which shall be such as to make it, in the judgment of [the
lead Representative] impracticable to market the Shares, or (iii) if
trading in any securities of the Company shall have been suspended by
the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock
Exchange shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New
York authorities, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the date of this Agreement shall have been lowered since
that date or if any such rating agency shall have publicly announced
that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading, or (v) if
there shall have come to the attention of such Underwriter any facts
that would cause you to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Shares, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
(c) In the event of any termination pursuant to paragraph (a),
neither party will have any liability to the other party hereto, except
that (i) each Underwriter shall be entitled to any commissions earned
in accordance with this Agreement, (ii) if at the time of termination
you shall own any Shares purchased pursuant to this Agreement with the
intention of reselling them, the covenants set forth in Section 4
hereof shall remain in effect until such Shares are so resold or
delivered, as the case may be, and (iii) the provisions of Section 4(d)
hereof, the indemnity and contribution agreements set forth in Section
7 hereof and the provisions of Sections 10 and 12 hereof shall remain
in effect.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Shares. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
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11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telecopied (with confirmation of receipt) to them, at
____________________________; or, if sent to the Company, will be mailed,
delivered or telecopied (with confirmation of receipt) to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention of the Secretary (facsimile number (216)
291-7070)).
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
TRW Inc.
By:______________________________________
[Title]
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
[Representatives]
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
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SCHEDULE I
NUMBER OF
FIRM SHARES TO
UNDERWRITER BE PURCHASED
--------------------------------------------------------------------------------
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Total
========
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