Exhibit 1
ROCKWELL INTERNATIONAL CORPORATION
$350,000,000 6.15% Notes Due January 15, 2008
$250,000,000 6.70% Debentures Due January 15, 2028
$200,000,000 5.20% Debentures Due January 15, 2098
UNDERWRITING AGREEMENT
January 21, 1998
To the Representative or Representatives
named in Schedule A hereto of the
Underwriters named in Schedule B
hereto
Ladies and Gentlemen:
The undersigned Rockwell International Corporation, a Delaware
corporation (the "Company"), confirms its agreement with the several
underwriters named in Schedule B hereto (the "Underwriters") as set forth below.
If the firm or firms listed in Schedule B hereto include only the firm or firms
listed in Schedule A hereto (the "Representatives"), then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
The Company proposes to issue and sell debt securities of the titles
and amounts set forth in Schedule A hereto (collectively, the "Purchased
Securities"), to be issued under the Indenture dated as of December 1, 1996 (the
"Indenture") between the Company and The Chase Manhattan Bank (successor to
Mellon Bank, N.A.), as Trustee. The Purchased Securities may be convertible into
or exchangeable for shares of Common Stock, par value $1 per share, of the
Company (the "Common Stock") as provided in or pursuant to the Indenture, and
Preferred Share Purchase Rights (the "Rights") may be delivered with Common
Stock upon conversion or exchange of any convertible or exchangeable Purchased
Securities. The term "Purchased Securities" shall not include the Common Stock
or Rights, if any, issuable or deliverable upon conversion or exchange of any
convertible or exchangeable debt securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (Registration No. 333-43071)
relating to $1,000,000,000 of debt securities and shares of Common Stock and
Rights, if any, issuable or deliverable upon conversion or exchange of any
convertible or exchangeable debt securities, and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "1933 Act"). Such Registration Statement has been declared effective by the
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Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such Registration Statement and the
Prospectus or Prospectuses relating to the sale of Purchased Securities by the
Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time may be amended or supplemented,
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act or otherwise, are in each case collectively referred to herein as
the "Registration Statement" and the "Prospectus", respectively; provided,
however, that a supplement of the Prospectus contemplated by Section 3(a) (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Purchased Securities to which it
relates and such Prospectus Supplement shall be the only supplement included in
the terms "Registration Statement" or "Prospectus". If the Company elects to
rely on Rule 434 under the 1933 Act, all references to the Prospectus shall be
deemed to include, without limitation, the form of prospectus and the term
sheet, taken together, provided to the Representatives by the Company in
reliance on such Rule 434. If the Company files a registration statement to
register a portion of the Purchased Securities and relies on Rule 462(b) under
the 1933 Act for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any reference
to "Registration Statement" herein shall be deemed to be both the registration
statement referred to above (Registration No. 333-43071) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective complied, and as of the
date hereof complies, in all material respects with the requirements of
the 1933 Act, the rules and regulations thereunder (the "Regulations"),
the 1934 Act and the rules and regulations thereunder and the 1939 Act.
The Registration Statement, at the time the Registration Statement
became effective did not, and as of the date hereof does not, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective did not, and as of the date hereof does not,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply (i) to statements in or omissions from the
Registration Statement or Prospectus made
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in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus or (ii)
to that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification under the 1939 Act (Form
T-1) (the "Form T-1") of the Trustee under the Indenture.
(b) Any documents incorporated by reference in the
Registration Statement and the Prospectus subsequent to the date hereof
will, when filed with the Commission, conform in all material respects
to the requirements of the 1934 Act and the rules and regulations
thereunder, and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change in the condition, financial or otherwise, or
the results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(d) Each of the Company and Allen-Bradley Company, Inc., a
Wisconsin corporation, Reliance Electric Company, a Delaware
corporation, Rockwell Collins, Inc., a Delaware corporation, and
Rockwell Semiconductor Systems, Inc., a Delaware corporation
(collectively, the "Named Subsidiaries"), has been duly incorporated,
is a validly existing corporation in good standing under the laws of
its state of its incorporation and has the requisite corporate power
and authority to carry on its business as currently being conducted, to
own, lease and operate its properties, and each is duly qualified and
is in good standing as a foreign corporation in each jurisdiction
wherein the character of the property owned or held under lease by it
makes such qualification necessary, except in such jurisdictions where
the failure so to qualify or to be in good standing will not subject
the Company to any liability material to the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise.
(e) All of the outstanding shares of capital stock of each
Named Subsidiary are validly issued, fully paid and nonassessable and
not subject to any preemptive rights, and all of the outstanding shares
of capital stock of each Named Subsidiary are owned by the Company,
free and clear of any security interest, mortgage, pledge, claim, lien
or encumbrance (each, a "Lien"). There are no outstanding
subscriptions, rights, warrants, options, calls, commitments
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for sale or Liens related to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of any Named
Subsidiary.
(f) The execution and delivery of this Agreement, the Delayed
Delivery Contracts (as defined below), if any, and the Indenture and
the consummation of the transactions contemplated herein and therein
have been duly authorized by all necessary corporate action; each of
this Agreement and the Indenture are, and when duly executed and
delivered in accordance with their terms, the Delayed Delivery
Contracts, if any, will be, valid and legally binding agreements of the
Company and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company is a party or by which
it may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended, or
By-Laws of the Company or, to the best of its knowledge, any law,
administrative regulation or administrative or court decree applicable
to the Company; and no consent, approval, authorization or order of any
court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under the 1933 Act, the 1939
Act or the Regulations or state securities or Blue Sky laws.
(g) The Purchased Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when duly executed,
authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor in accordance with this Agreement, the Purchased Securities
will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be entitled to the benefits
of the Indenture, which will be substantially in the form heretofore
delivered to you, except as supplemented to reflect the terms of any
one or more series of debt securities.
(h) The shares of Common Stock initially issuable upon the
conversion or exchange of any Purchased Securities that are convertible
into or exchangeable for shares of Common Stock have been duly
authorized and reserved for such issuance, and the shares of Common
Stock, if any, issued
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upon conversion or exchange of any such convertible or exchangeable
Purchased Securities in accordance with their terms will be validly
issued, fully paid and non-assessable and the associated Rights, if
any, have been duly authorized and will be validly issued.
(i) The Purchased Securities, the Indenture, the Common Stock
and the Rights, if any, conform in all material respects to all
statements relating thereto contained in or incorporated by reference
into the Prospectus and the applicable Prospectus Supplement.
(j) No strike or labor stoppage by the employees of the
Company or any subsidiary exists, or, to the knowledge of the Company,
is imminent which is expected to have a material adverse effect upon
the conduct of the business, or the earnings, operations or condition,
financial or otherwise, of the Company and its subsidiaries, considered
as one enterprise.
Any certificate signed by any officer of the Company and delivered to
you or counsel for the Underwriters in connection with an offering of Purchased
Securities shall be deemed a representation and warranty by the Company, as to
the matters covered thereby, to each Underwriter participating in such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments of
the Underwriters to purchase Purchased Securities in the respective amounts set
forth on Schedule B hereto shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by wire
transfer to an account designated by the Company in immediately available funds
against delivery to you for the respective accounts of the Underwriters of the
Purchased Securities to be purchased by them. Such Purchased Securities shall be
in such denominations and registered in such names as you may request in writing
at least two business days prior to the Closing Time. Such Purchased Securities,
which may be in temporary form, will be made available for examination and
packaging by you on or before the first business day prior to the Closing Time.
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single
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temporary global security without coupons (the "Global Debt Security")
evidencing the Purchased Securities that are in bearer form to a common
Depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), and for Centrale de Livraison de
Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective accounts at
Euroclear or CEDEL of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to you not
later than the Closing Time, against payment of funds to the Company in the net
amount due to the Company for such Global Debt Security by the method and in the
form set forth in Schedule A hereto. The Company shall cause definitive
Purchased Securities in bearer form to be prepared and delivered in exchange for
such Global Debt Security in such manner and at such time as may be provided in
or pursuant to the Indenture; provided, however, that the Global Debt Security
shall be exchangeable for definitive Purchased Securities in bearer form only on
or after the date specified for such purpose in the Prospectus.
If authorized in Schedule A hereto, the Underwriters named therein may
solicit offers to purchase debt securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit I hereto with such changes therein as the Company may approve. Any
Purchased Securities purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein referred to as "Contract Securities". As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
you at the Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Contract Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in Schedule A
hereto. At the Closing Time the Company will enter into Delayed Delivery
Contracts with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule A hereto.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
Delayed Delivery Contracts are to be only with such investors and in
such amounts as are approved by the Company. You are to submit to the Company at
least three business days prior to the Closing Time, the names of any investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Contract Securities to be purchased by
each of them, and the Company will advise you, at least two business days prior
to the Closing Time, of the names of the investors with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount
of Contract Securities to be covered by each such Delayed Delivery Contract.
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If the Company executes and delivers Delayed Delivery Contracts, the
aggregate principal amount of Contract Securities will be deducted from the
aggregate principal amount of Purchased Securities to be purchased by the
several Underwriters and the principal amount of the Purchased Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Purchased Securities set forth opposite each Underwriter's
name in Schedule B hereto, except to the extent that the Representatives
determine that such reduction shall be otherwise than pro rata and so advise the
Company in writing; provided, however, that the aggregate principal amount of
Purchased Securities to be purchased by all Underwriters shall be the aggregate
principal amount of Purchased Securities less the aggregate principal amount of
Contract Securities.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the
principal amount of Purchased Securities covered thereby and their
terms not otherwise specified in the Indenture, the names of the
Underwriters participating in the offering and the principal amount of
Purchased Securities which each severally has agreed to purchase, the
names of the Underwriters acting as Representatives in connection with
the offering, the price at which the Purchased Securities are to be
purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and
the Company deem appropriate in connection with the offering of the
Purchased Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424
of the Regulations and will furnish to the Underwriters named therein
as many copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Purchased
Securities any event shall occur or condition exist as a result of
which it is necessary to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be
necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of
the 1933 Act or the Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934
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Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement or the Prospectus
comply with such requirements.
(c) The Company will make generally available to its security
holders, in each case as soon as practicable, an earnings statement (in
form complying with the provisions of Section 11(a) of the 1933 Act and
the Regulations, which need not be certified by independent certified
public accountants unless required by the 1933 Act or the Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in Rule 158 of the Regulations) of the Registration Statement.
(d) The Company will give you notice of its intention to file
any amendment to the Registration Statement or any supplement to the
Prospectus with respect to the Purchased Securities, other than those
made by the filing of documents pursuant to the 1934 Act, will furnish
you with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any
such amendment or supplement in a form to which you or your counsel
shall reasonably object.
(e) The Company will notify each of you immediately, and
confirm the notice in writing, (i) of the filing or effectiveness of
any amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the
Prospectus, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or any
Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus with respect to the Purchased Securities or for
additional information with respect thereto, and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed)
and each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request and will
also deliver to you a conformed copy of the Registration Statement and
each amendment thereto for each of the Underwriters.
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(g) The Company will endeavor, in cooperation with you, to
qualify the Purchased Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Purchased Securities; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
take any action which would subject it to general consent to service of
process in any state in which it is not now qualified or not now so
subject. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Purchased
Securities have been qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act.
(i) Between the date of this Agreement and the Closing Time
with respect to the Purchased Securities covered thereby, the Company
will not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company with a maturity
of more than one year.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Purchased Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, as of the date hereof and as of the Closing Time, to
the accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or, to the
knowledge of the Company or the Underwriters, threatened by the
Commission, (ii) the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company
as of the date of this Agreement shall not have been lowered since that
date and no such rating agency shall have publicly announced since that
date that it is placing any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading and (iii) the
Prospectus, together with the applicable Prospectus Supplement, shall
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
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(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing
Time, of Chadbourne & Parke LLP, counsel for the Company, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(iii) This Agreement and the Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The Purchased Securities have been duly
authorized by all necessary corporate action and, when duly
executed and authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement and any
applicable Delayed Delivery Contract, will be valid and
binding obligations of the Company, enforceable in accordance
with their terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights in general and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
(vi) The shares of Common Stock initially
issuable upon the conversion or exchange of any Purchased
Securities that are convertible into or exchangeable for
shares of Common Stock have been duly authorized and reserved
for such issuance, and the shares of Common Stock, if any,
issued upon conversion or exchange of any such convertible or
exchangeable Purchased Securities in accordance with their
terms
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will be validly issued, fully paid and non-assessable and the
associated Rights, if any, have been duly authorized and will
be validly issued.
(vii) The Indenture, the Purchased
Securities, the Common Stock and the Rights, if any, conform
in all material respects to the descriptions thereof contained
in or incorporated by reference into the Prospectus and the
applicable Prospectus Supplement.
(viii) The Indenture is qualified under the
1939 Act.
(ix) The Registration Statement is effective
under the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(x) The Registration Statement (other than
the financial statements and other financial data included or
incorporated by reference therein, as to which no opinion need
be rendered) complies as to form in all material respects with
the requirements of the 1933 Act, the 1939 Act (other than
Form T-1, as to which no opinion need be rendered) and the
Regulations, and nothing has come to their attention that
would lead them to believe that the Registration Statement
(other than the financial statements and other financial data
included or incorporated by reference therein, as to which no
opinion need be rendered), as of the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the Closing
Time (other than the financial statements and other financial
data included or incorporated by reference therein, as to
which no opinion need be rendered), contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(xi) Each document, if any, filed pursuant
to the 1934 Act (other than the financial statements and other
financial data included or incorporated by reference therein,
as to which no opinion need be rendered) and incorporated by
reference in the Prospectus, complied when so filed as to form
in all
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material respects with the 1934 Act and the rules and
regulations thereunder.
(xii) No consent, approval, authorization or
order of any court or governmental authority or agency is
required in connection with the sale by the Company of the
Purchased Securities to the Underwriters, except such as may
be required under the 1933 Act, the Regulations, the 1939 Act
and any state securities laws, and to the best of their
knowledge and information, the execution and delivery of this
Agreement, the Delayed Delivery Contracts, if any, and the
Indenture and the consummation of the transactions
contemplated herein will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to them to
which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Restated Certificate of Incorporation, as amended, or By-Laws
of the Company, or to the best of their knowledge any law,
administrative regulation or administrative or court decree
applicable to the Company.
(2) The favorable opinion, dated as of the Closing
Time, of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company is duly qualified as a
foreign corporation and is in good standing in the States of
California and Pennsylvania and in each other jurisdiction
wherein the character of the property owned or held under
lease by it makes such qualification necessary, except in such
jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise.
(ii) Each of the Named Subsidiaries is a
subsidiary of the Company, has been duly incorporated and is a
validly existing corporation in good standing under the laws
of the state of its incorporation and is duly qualified and is
in good standing as a foreign corporation in each jurisdiction
wherein the character of the property owned or held under
lease by it makes such qualification necessary, except in such
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jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise; the
outstanding shares of capital stock of each such Named
Subsidiary are validly issued, fully paid and nonassessable;
and all of such capital stock is owned by the Company free and
clear of any Liens.
(iii) The execution and delivery of this
Agreement, the Delayed Delivery Contracts, if any, and the
Indenture and the consummation of the transactions
contemplated herein will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or, to the best
of his knowledge, by which it or any of them may be bound or
to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or By-Laws of the Company or any
law, administrative regulation or administrative or court
decree applicable to the Company.
(iv) There is no litigation or governmental
proceeding pending or, to the best of his knowledge,
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement and
the Delayed Delivery Contracts, if any, which would have a
material adverse effect on the financial position or
consolidated financial statements of the Company and its
subsidiaries as a whole or which is required to be disclosed
in the Prospectus which is not adequately disclosed therein.
(v) To the best of his knowledge, there are
no contracts which are required to be filed as exhibits to the
Registration Statement which are not so filed or which are
required to be disclosed in the Prospectus which are not
adequately disclosed therein.
(3) The favorable opinion or opinions, dated as of
the Closing Time, of Dewey Ballantine LLP, counsel for the
Underwriters, with respect to the incorporation of the Company, the
validity of the Purchased Securities delivered at the Closing Time, the
Registration Statement, the Prospectus and such other related matters
as the Representatives may require.
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(c) At the Closing Time there shall not have been, since the
date of this Agreement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered
as one enterprise, or any development involving a material adverse
prospective change in or affecting particularly the financial condition
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and you
shall have received a certificate of the President or a Vice President
of the Company, dated as of the Closing Time, to the effect that there
has been no such material adverse change or prospective change and to
the effect that the representations and warranties of the Company
contained in Section 1 are true and correct as of the Closing Time.
(d) You shall have received from Deloitte & Touche LLP a
letter, addressed to you and dated as of the Closing Time and delivered
at such time, in form satisfactory to you and concerning such matters
as you shall reasonably request.
(e) At the Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Purchased Securities as herein contemplated
and related proceedings or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Purchased Securities as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Purchased Securities
to the Underwriters, (iii) the fees and disbursements of the Company's counsel
and accountants, (iv) the qualification of the Purchased Securities under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (v) the printing
14
and delivery to the Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto, and of the Prospectus,
(vi) the printing and delivery to the Underwriters of copies of the Indenture
and any Blue Sky Survey and Legal Investment Survey, (vii) the fees of rating
agencies and (viii) the fees and expenses, if any, incurred in connection with
the listing of the Purchased Securities on the New York Stock Exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with the
subject matter of this Agreement. The Company shall not in any event be liable
to any of the Underwriters for loss of anticipated profits from the transactions
contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) subject to subparagraph (c), against any and all expense
whatsoever as and when incurred (including the fees and disbursements
of counsel chosen by you) reasonably incurred in investigating,
preparing or defending against
15
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
This indemnity is subject to the condition that, insofar as it relates
to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus, it shall not inure to the benefit of any
Underwriter from whom the person asserting the claim purchased the Purchased
Securities (or to the benefit of any person who controls such Underwriter) if a
copy of the Prospectus (excluding documents incorporated by reference therein),
as amended or supplemented prior to the written confirmation mentioned below,
was not delivered to such person at or prior to the written confirmation of the
sale of such Purchased Securities and the delivery thereof would constitute a
defense against the claim asserted by such person.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of this Agreement, is a director, officer or controlling person
of the Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental investigation or
proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding subsections (a)
and (b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
but failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of subsections (a) and (b)
above. The indemnifying party shall have the right to retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may
16
designate in such proceeding and shall pay the fees and disbursements as
incurred of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and the indemnified party shall have reasonably
concluded that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such separate firm shall be designated in writing by you in
the case of parties indemnified pursuant to subsection (a) of this Section and
by the Company in the case of parties indemnified pursuant to subsection (b) of
this Section.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters of the Purchased Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Purchased Securities received by the
Company on the one hand and by such Underwriters on the other hand, provided
that if the Purchased Securities are offered by Underwriters at an initial
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
17
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Purchased Securities to the Underwriters.
SECTION 9. Termination. You may terminate this Agreement, immediately
upon notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the date of this Agreement, any material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your reasonable judgment, is material and adverse, which makes it
impracticable to market the Purchased Securities or enforce contracts for the
sale of the Purchased Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities. In the event of any such termination, the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Section 8 and 13 shall
remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating
in an offering of Purchased Securities shall fail at the Closing Time to
purchase the Purchased Securities which it or they are obligated to purchase
hereunder (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements satisfactory to the Company for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth. If, however, during such 24
hours you shall not have completed such arrangements for the purchase of all of
the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated
to purchase the full
18
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, this Agreement
shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the Closing Time, subject to termination of this Agreement as provided
in subsection (b) above, for a period of time not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at 700 Anton Boulevard,
Suite 700, Costa Mesa, California 92626, attention of the Secretary with a copy
to the Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Section 6 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Purchased Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
19
SECTION 13. Governing Law. This Agreement shall be governed by the laws
of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
ROCKWELL INTERNATIONAL CORPORATION
By /s/ Dennis J. Popovec
-------------------------------
Name: Dennis J. Popovec
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By MORGAN STANLEY & CO. INCORPORATED
By /s/ Michael M. Fusco
----------------------------------
Name: Michael M. Fusco
Title: Vice President
20
SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated January 21, 1998
Representative: Morgan Stanley & Co. Incorporated
Titles of Securities:
6.15% Notes Due January 15, 2008 ("6.15% Notes")
6.70% Debentures Due January 15, 2028 ("6.70% Debentures")
5.20% Debentures Due January 15, 2098 ("5.20% Debentures")
Amounts of Securities:
6.15% Notes - $350,000,000
6.70% Debentures - $250,000,000
5.20% Debentures - $200,000,000
Prices to Public:
6.15% Notes - 100.000% plus accrued interest, if any, from
January 26, 1998
6.70% Debentures - 100.000% plus accrued interest, if any,
from January 26, 1998
5.20% Debentures - 75.387% plus accrued interest, if any, from
January 26, 1998
Purchase Prices:
6.15% Notes - 99.350% plus accrued interest, if any, from
January 26, 1998
6.70% Debentures - 99.125% plus accrued interest, if any, from
January 26, 1998
5.20% Debentures - 74.6331% plus accrued interest, if any,
from January 26, 1998
Delayed Delivery - NONE
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing -
Office for delivery of Securities:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
Office for payment for Securities:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
Date and time of Closing: 10:00 a.m., January 26, 1998
Office for checking Securities:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
Underwriting commissions or other compensation:
6.15% Notes - .650%
6.70% Debentures - .875%
5.20% Debentures - .7539%
Address for notices per Section 11:
Morgan Stanley & Co. Incorporated
1585 Broadway
Attention: 30th Floor
New York, New York 10036
2
SCHEDULE B
Underwriting Agreement dated January 21, 1998
Principal Principal Principal
Amount of Amount of Amount of
6.15% 6.70% 5.20%
Underwriter Notes Debentures Debentures
- ----------- ------------ ------------ ------------
Morgan Stanley & Co. Incorporated $117,000,000 $ 83,400,000 $ 67,000,000
J.P. Morgan Securities Inc. 116,500,000 83,300,000 66,500,000
SBC Warburg Dillon Read Inc. 116,500,000 83,300,000 66,500,000
------------ ------------ ------------
Totals $350,000,000 $250,000,000 $200,000,000
============ ============ ============
EXHIBIT I
ROCKWELL INTERNATIONAL CORPORATION
(a Delaware corporation)
[Title of Security]
DELAYED DELIVERY CONTRACT
[Date]
ROCKWELL INTERNATIONAL CORPORATION
600 Anton Boulevard
Suite 700
Costa Mesa, California 92626
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Rockwell International
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned on _________________, ____ (the "Delivery Date"),
_____________ principal amount of the Company's _______________________ (the
"Securities"), offered by the Company's Prospectus dated ___________, ____, as
supplemented by its Prospectus Supplement dated __________________, ____,
receipt of which is hereby acknowledged, at a purchase price of ___% the
principal amount thereof, plus accrued interest from _________________, ____, to
the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds, at the office of [name and
address] or at such other place as the undersigned and the Company shall agree,
on the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive form and in such authorized
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _______________, ____,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of
the Securities as is to be sold to them pursuant to the Underwriting Agreement
dated ______________, ____, between the Company and the Underwriters less the
principal amount thereof covered by this and other similar contracts. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_____________ and that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at the
address set forth below. This will become a binding contract between the Company
and the undersigned when such copy is so mailed or delivered.
2
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
------------------------------
(Name of Purchaser)
By
----------------------------
(Title)
------------------------------
------------------------------
(Address)
Accepted as of the date first above written.
ROCKWELL INTERNATIONAL CORPORATION
By
-------------------------------
3
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (including Area Code)
- ---- ---------------------
4