EXHIBIT 1.1
RAYTHEON COMPANY
Debt Securities
UNDERWRITING AGREEMENT
SECTION 1. Introduction. Raytheon Company, a Delaware corporation
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("Company"), proposes to issue and sell from time to time certain of its debt
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securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). The Registered Securities will be issued under
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an indenture, dated as of July 3, 1995 ("Indenture"), between the Company and
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The Bank of New York, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions, selling
prices and other terms, with such terms for any particular series of the
Registered Securities being determined at the time of sale. Particular series of
the Registered Securities will be sold pursuant to a Terms Agreement referred to
in Section 3 for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
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purchase the Securities are hereinafter referred to as the "Underwriters" and
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the representative or representatives of the Underwriters, if any, specified in
a Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
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specify any representative of the Underwriters, the term "Representatives", as
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used in this Agreement (other than in Sections 2(b), 5(e) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
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represents and warrants to and agrees with each Underwriter that:
(a) A registration statement (No. 333- ), including a prospectus,
relating to the Registered Securities has been filed with the Securities
and Exchange Commission ("Commission") and has become effective. Such
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registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
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Statement", and the prospectus included in such Registration Statement, as
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supplemented as contemplated by Section 3 to reflect the terms of the
Securities and the terms of offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
Securities Act of 1933, as amended ("Act"), including all material
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incorporated by reference therein, is hereinafter referred to as the
"Prospectus".
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(b) On the effective date, the Registration Statement conformed in
all material respects to the requirements of the Act, the Trust Indenture
Act of 1939, as amended ("Trust Indenture Act"), and the rules and
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regulations of the Commission ("Rules and Regulations") and did not include
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any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act, the
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Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does not
apply to (i) statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein or (ii)
that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act.
3. Purchase and Offering of Securities. The obligation of the
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Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
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Company determines to sell the Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the terms of
the Securities not already specified in the Indenture, including, but not
limited to, interest, maturity, any redemption provision and any sinking fund
requirements and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery and payment (such time
and date, or such other time not later than seven full business days thereafter
as the Representatives and the Company agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as the "Closing
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Date"), the place of delivery and payment and any details of the terms of
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offering that should be reflected in the prospectus supplement relating to the
offering of the Securities. The obligations of the Underwriters to purchase the
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. Unless the Terms Agreement specifies that the Securities will be
issued in the form of a global security to be deposited with a depositary, as
contemplated by the Indenture, the securities delivered to the Underwriters on
the Closing Date will be in definitive fully registered form, in such
denominations and registered in such names as the Underwriters may request.
If the Terms Agreement provides for the sale of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
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Contracts") with such changes therein as the Company may authorize or approve.
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Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date, the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
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respect of the validity or the performance of Delayed Delivery Contracts. If
the Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
of Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine
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that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
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several Underwriters that it will furnish to the Representatives one signed copy
of the Registration Statement, including all exhibits, in the form in which it
became effective and of all amendments thereto, and that, in connection with
each offering of Securities:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission an amendment or supplement which
will correct such statement or omissions or an amendment which will effect
such compliance.
(c) As soon as practicable after the date of each Terms Agreement,
the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after
the latest of (i) the effective date of the Registration Statement, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
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(f) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including reasonable fees and disbursements of counsel)
incurred by them in connection with qualification of the Registered
Securities for sale and determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives may designate
and the printing of memoranda relating thereto, and for any fees charged by
investment rating agencies for the rating of the Securities and for
expenses incurred in distributing the Prospectus, any preliminary
prospectuses and any preliminary prospectus supplements to underwriters.
(g) For a period beginning at the time of execution of the Terms
Agreement and ending 30 days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, contract
to sell or otherwise dispose of any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of the Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Coopers & ▇▇▇▇▇▇▇ L.L.P., covering such matters as are
customary for accountants' "comfort" letters for underwritten transactions
of the type contemplated by the Terms Agreement and in form and substance
reasonably satisfactory to the Representatives.
(b) If, at the date of the Terms Agreement, the financial statements
of the Defense Business of Texas Instruments Incorporated, referred to in
the report of Ernst & Young LLP dated February 18, 1997, are incorporated
by reference into the Registration Statement, then on or prior to the date
of the Terms Agreement the Representatives shall have received a letter,
dated the date of delivery thereof, of Ernst & Young LLP, covering such
matters relating to such financial statements as are customary for
accountants' "comfort" letters for underwritten transactions of the type
contemplated by the Terms Agreement and in form and substance reasonably
satisfactory to the Representatives.
(c) If, at the date of the Terms Agreement, the financial statements
of the Defense Business of ▇▇▇▇▇▇ Electronics Corporation, referred to in
the report of Deloitte & Touche LLP dated March 21, 1997, are incorporated
by reference into the Registration Statement, then on or prior to the date
of the Terms Agreement the Representatives shall have received a letter,
dated the date of delivery thereof, of Deloitte & Touche LLP, covering such
matters relating to such financial statements as are customary for
accountants' "comfort" letters for underwritten transactions of the type
contemplated by the Terms Agreement and in form and substance reasonably
satisfactory to the Representatives.
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(d) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(e) Subsequent to the execution of the Terms Agreement (i) there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including any Representatives, materially
impairs the investment quality of the Securities or the Registered
Securities; (ii) trading generally shall not have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade; (iii) trading of
any securities of the Company shall not have been suspended on any exchange
or in any over-the-counter market; (iv) there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization",
as such term is defined for purposes of Rule 436(g)(2) under the Act; (v)
no banking moratorium shall have been declared by Federal or New York
authorities; and (vi) there shall not have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
impractical to proceed with completion of the sale of and payment for the
Securities.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and General Counsel for the
Company, to the effect that:
(i) The Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, with corporate
and authority to own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the Company;
(ii) The Securities have been duly authorized; the Securities
other than any Contract Securities, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with the Terms Agreement
(including the provisions of this Agreement), and any Contract
Securities, when executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture;
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(iii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of or constitute a default under (A) any order known to such counsel
of any governmental agency having jurisdiction over the Company or any
of its properties or any agreement or instrument known to such counsel
to which the Company is a party or by which the Company is bound or to
which any of the properties of the Company is subject, which would
cause a material adverse change in the financial position,
shareholders' equity or results of operations of the Company or affect
the validity of the Securities or the legal authority of the Company
to comply with the terms of the Securities, the Indenture or this
Agreement or (B) the charter or By-laws of the Company, and the
Company has full power and authority to authorize, issue and sell the
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery by the Trustee) is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except (A) as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(v) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(vi) No authorization, approval or consent of any governmental
authority or agency is necessary in connection with the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement) except such as may be required under the Act, the Trust
Indenture Act and state securities or Blue Sky laws.
In addition, ▇▇. ▇▇▇▇ shall state that he or others working under
his supervision have participated in conferences with officers and other
representatives of the Company, outside counsel for the Company,
representatives of the independent public accountants for the Company, and
the Underwriters, at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although he is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, on the basis of the foregoing and on his ongoing
representation of the Company, no facts have come to his attention that
lead him to believe that (i) such registration statement, at the time such
registration statement became effective, or the Registration Statement, as
of the date of the Terms Agreement, or any amendment or supplement to the
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Registration Statement or the Prospectus, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (ii)
that the Prospectus, as of its date and the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that he need express no
opinion with respect to the financial statements, schedules and other
financial and statistical data included or incorporated by reference in the
Registration Statement or Prospectus or with respect to the Form T-1.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company,
who may rely as to the approval or consent of non-Federal governmental
authorities upon the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. referred to above, to
the effect that:
(i) The Securities, other than any Contract Securities, and the
Indenture, conform, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will
conform in all material respects to the descriptions thereof contained
in the Prospectus;
(ii) The Indenture has been duly qualified under the Trust
Indenture Act;
(iii) The Registration Statement has become effective under the
Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated;
(iv) The registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and each
amendment or supplement thereto, as of their respective effective or
mailing dates (but excluding the financial statements and schedules
and other financial and statistical data and the Form T-1 included or
incorporated by reference therein, as to which such counsel need
express no opinion) complied as to form in all material respects with
the Act, the Trust Indenture Act and the Rules and Regulations, as
applicable;
(v) Such counsel do not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; and
(vi) No authorization, approval or consent of any governmental
authority or agency is necessary in connection with the transactions
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contemplated by the Terms Agreement (including the provisions of this
Agreement) except such as may be required under the Act, the Trust
Indenture Act and state securities or Blue Sky laws.
(h) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, to be named in the Terms Agreement
such opinion or opinions, dated the Closing Date, with respect to the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) The Representatives shall have received a certificate, dated the
Closing Date, of any vice-president and a principal financial or accounting
officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change in the business, financial position or results of operations
of the Company and its subsidiaries except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(j) The Representatives shall have received a letter, dated the
Closing Date, of Coopers & ▇▇▇▇▇▇▇ L.L.P., which reconfirms the matters set
forth in their letter delivered pursuant to subsection (a) of this Section
and covering such matters as are customary for accountants' "comfort"
letters for underwritten transactions of the type contemplated by the Terms
Agreement and in form and substance reasonably satisfactory to the
Representatives. If Ernst & Young LLP or Deloitte & Touche LLP shall have
delivered a letter to the Representatives pursuant to subsection (b) or
(c), respectively, of this Section, the Representatives shall have received
a letter, dated the Closing Date, of Ernst &Young LLP or Deloitte & Touche
LLP, as the case may be, which reconfirms the matters set forth in their
previous letter and is in form and substance reasonably satisfactory to the
Representatives.
6. Indemnification and Contribution. (a) The Company will indemnify
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and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are 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 will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating
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or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable (i) in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein and (ii) to
any Underwriter (or anyone controlling such Underwriter), with respect to any
preliminary prospectus or preliminary prospectus supplement, from whom the
person asserting any such loss, claim, damage or liability purchased Securities,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendment or supplements thereto) was not delivered by
or on behalf of such Underwriter to such person, if required by law to have been
so delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such
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settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
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default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the
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Securities, the Representatives may make arrangements satisfactory to the
Company for the purchase of such Securities by other persons, including any of
the Underwriters, but if no such arrangements are made by the Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under this Agreement and the Terms Agreement, to purchase
the Securities that such defaulting Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters so default and the aggregate principal amount
of the Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of the Securities and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Securities by other persons are not made within 36 hours after such default,
such Terms Agreement will terminate without liability on the part of any
nondefaulting Underwriter or the Company, except as provided in Section 8. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of the
several Underwriters for the purposes of this Section shall be determined
without regard to the reduction in the respective Underwriters' obligations to
purchase the principal amounts of the Securities set forth opposite their names
in the Terms Agreement as a result of Delayed Delivery Contracts entered into by
the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
----------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement (excluding the matters set forth in Section
5(d)), or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
--------
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of General Counsel.
12
10. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
---------------
governed by, and construed in accordance with, the laws of the State of New
York.
ANNEX I
[omit in exe-
------------
cution copies]
-------------
(Three copies of this Delayed Delivery Contract should be signed and returned to
-------------------------------------------------------------------------------
the address shown below so as to arrive not later than 9:00 A.M., New York time,
--------------------------------------------------------------------------------
on [date that is the third full business day prior to Closing Date under the
----------------------------------------------------------------------------
Terms Agreement].)
---------------
DELAYED DELIVERY CONTRACT
-------------------------
[date of initial public offering]
-------------------------------
RAYTHEON COMPANY
c/o [insert name and address]
Attention: [name].
----
Gentlemen:
The undersigned hereby agrees to purchase from Raytheon Company, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert -- as of the date hereof, for
------------------------------
delivery on ___________, 19__ ("Delivery Date"),]
$________ _____
principal amount of the Company's [Debt Securities/Debentures] ("Securities"),
offered by the Company's Prospectus dated _________, 19__ and a Prospectus
Supplement dated ____________, 19__ relating thereto, receipt of copies of which
is hereby acknowledged, at __% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
--------------- ----------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the/each] Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of [name] at [time] _.M. on [the/such] Delivery Date upon
delivery to the undersigned of the Securities to be purchased by the undersigned
[for delivery on such
Delivery Date/in definitive] fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to [the/such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the/each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the/such] Delivery Date be prohibited under the laws of any jurisdiction
in the United States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of the Securities
less the principal amount thereof covered by this and other similar Contracts.
The undersigned represents that its investment in the Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by [a copy/copies] of the opinions of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such 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 below and mail or
deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such
counterpart is so mailed or delivered.
Very truly yours,
-------------------------------
(Name of Purchaser)
by
-------------------------
-------------------------
(Title of Signatory)
Accepted as of the above date.
-------------------------
RAYTHEON COMPANY
-------------------------
(Address of Purchaser)
by
-------------------------
[Title]