Exhibit
1
EXECUTION
COPY
UNDERWRITING
AGREEMENT
$
300,000,000
ROCKWELL
COLLINS, INC.
5.25%
Notes due 2019
Underwriting
Agreement
Banc of
America Securities LLC
J.P.
Morgan Securities Inc.
UBS
Securities LLC
As
Representatives of the
several
Underwriters listed
in
Schedule 1 hereto
c/o J.P.
Morgan Securities Inc.
270 Park
Avenue
New York,
New York 10017
Ladies
and Gentlemen:
Rockwell Collins, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are
acting as representatives (the “Representatives”), $300,000,000 principal amount
of its 5.25% Notes due 2019 (the “Securities”). The Securities will
be issued pursuant to an Indenture dated as of November 1, 2001, as supplemented
as of December 4, 2006 (the “Indenture”) between the Company and The Bank of New
York Mellon Trust Company, N.A. (as successor to The Bank of New York Trust
Company, N.A.), as trustee (the “Trustee”).
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and sale of the
Securities, as follows:
1.
Registration
Statement
. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form S-3 (File
No. 333-156442), including a prospectus (the “Basic Prospectus”), relating to,
among other things, the debt securities to be issued from time to time by the
Company. Such registration statement, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be
part of the registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as
used herein, the term “Prospectus” means the final prospectus supplement
specifically relating to the Securities in the form to be filed by the Company
with the Commission pursuant to Rule 424(b) under the Securities Act and first
used (or made available upon request of purchasers pursuant to Rule 173 under
the Securities Act) in connection with confirmation of sales of the Securities
together with the Basic Prospectus, and the term “Preliminary Prospectus” means
the preliminary prospectus supplement specifically relating to the Securities
filed by the Company with the Commission pursuant to Rule 424 under the
Securities Act together with the Basic Prospectus. References herein
to the Registration Statement, the Basic Prospectus, the Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the effective date of the Registration Statement or the
date of such Preliminary Prospectus or Prospectus, as the case may be, and the
terms “supplement,” “amendment” and “amend” as used herein with respect to the
Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company after such
date under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”)
which are deemed to be incorporated by reference therein.
At 2.40
pm (New York City time) on May 1, 2009, which was at or immediately prior to the
time when sales of the Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively, the “Time of Sale
Information”): a Preliminary Prospectus dated May 1, 2009, and each
“free-writing prospectus” (as defined pursuant to Rule 405 under the Securities
Act) listed on Annex B hereto.
2.
Purchase of the Securities
by the Underwriters
. (a) The Company agrees to
issue and sell the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
principal amount of Securities set forth opposite such Underwriter's name in
Schedule 1 hereto at a price equal to 98.821% of the principal amount thereof
plus accrued interest, if any, from May 6, 2009 to the Closing Date (as defined
below). The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) The
Company understands that the Underwriters intend to make a public offering of
the Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representatives is advisable, and initially to offer the
Securities on the terms set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriters may offer and sell Securities to
or through any affiliate of an Underwriter and that any such affiliate may offer
and sell Securities purchased by it to or through any Underwriter.
(c) Payment
for and delivery of the Securities will be made at the offices of Davis Polk
& Wardwell, 450 Lexington Avenue, New York, NY 10017 at 10:00 A.M., New York
City time, on May 6, 2009, or at such other time or place on the same or such
other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing. The time
and date of such payment and delivery is referred to herein as the “Closing
Date”.
(d) Payment
for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representatives against
delivery to the nominee of The Depository Trust Company, for the account of the
Underwriters, of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Company. The Global
Note will be made available for inspection by the Representatives not later than
1:00 P.M., New York City time, on the business day prior to the Closing
Date.
(e) The
Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representatives nor any other
Underwriter is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The
Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by
the Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Company.
3.
Representations and
Warranties of the Company
. The Company represents and warrants
to each Underwriter that:
(a)
Preliminary
Prospectus.
No order preventing or suspending the use of the
Preliminary Prospectus has been issued by the Commission, and the Preliminary
Prospectus, at the time of filing thereof, complied in all material respects
with the requirements of the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact (other than
Rule 430 Information) required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
provided
that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with Underwriter Information
(as defined in Section 7).
(b)
Time of Sale Information
. The
Time of Sale Information, at the Time of Sale did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided
that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with Underwriter
Information. No statement of material fact included in the Prospectus
has been omitted from the Time of Sale Information and no statement of material
fact included in the Time of Sale Information that is required to be included in
the Prospectus has been omitted therefrom.
(c)
Issuer
Free Writing
Prospectus.
The Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, made, used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by
the Company or its agents and representatives (other than a communication
referred to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a prospectus pursuant
to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
listed on Annex B hereto and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in
all material respects with the requirements of the Securities Act, has been or
will be (within the time period specified in Rule 433 under the Securities Act)
filed in accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus, such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
provided
that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in reliance upon and
in conformity with Underwriter Information.
(d)
Registration Statement and
Prospectus.
The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has
been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related
to the offering has been initiated or, to the knowledge of the Company,
threatened by the Commission; as of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration Statement
complied and will comply, in all material respects with the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Trust Indenture
Act”), and did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date,
the Prospectus complied in all material respects with the requirements of the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to
(i) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) any statements or omissions in the Registration Statement
or the Prospectus or any amendment or supplement thereto made in reliance upon
and in conformity with Underwriter Information.
(e)
Incorporated
Documents.
The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information, when
such documents became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Exchange
Act and none of such documents, as of the date they became effective or were
filed with the Commission, as the case may be, contained any 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, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement,
the Prospectus or the Time of Sale Information, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not, as of the date such documents become effective
or are filed with the Commission, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f)
Financial
Statements.
The financial statements and the related notes
thereto included or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of their operations and the consolidated changes in
their cash flows for the periods specified in conformity with U.S. generally
accepted accounting principles (subject to normal year-end adjustments) applied
on a consistent basis throughout the periods covered thereby.
(g)
No Material Adverse
Change.
Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration
Statement and the Time of Sale Information, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole.
(h)
Organization and Good
Standing.
The Company and each of its significant subsidiaries
have been duly organized and are validly existing and in good standing (to the
extent such concept is relevant in any particular jurisdiction) under the laws
of their respective jurisdictions of organization, are duly qualified to do
business and are in good standing (to the extent such concept is relevant in any
particular jurisdiction) in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses
requires such qualification, and have the corporate or limited liability
company, as applicable, power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified, in good standing or have such power
or authority would not, individually or in the aggregate, have a material
adverse effect on the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole or on the
performance by the Company of its obligations under the Securities (a “Material
Adverse Effect”). The subsidiaries listed in Schedule 2 to this
Agreement are the only significant subsidiaries of the Company.
(i)
Capitalization.
All
the outstanding shares of capital stock or other equity interests of each
significant subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of any lien, encumbrance, security interest,
restriction on voting or transfer and are not subject to any preemptive or
similar rights in favor of any third party.
(j)
Due
Authorization.
The Company has full corporate power and
authority to execute and deliver this Agreement, the Securities and the
Indenture (collectively, the “Transaction Documents”) and to perform its
obligations hereunder and thereunder; and all corporate action required to be
taken by the Company for the due and proper authorization, execution and
delivery by the Company of each of the Transaction Documents and the
consummation by the Company of the transactions contemplated thereby has been
duly and validly taken.
(k)
The Indenture.
The Indenture
has been duly authorized, executed and delivered by the Company and has been
duly qualified under the Trust Indenture Act and constitutes a valid and legally
binding agreement of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws relating to or affecting the enforcement of creditors’ rights
generally or by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law (collectively,
the “Enforceability Exceptions”).
(l)
The
Securities
. The Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits
of the Indenture.
(m)
Underwriting
Agreement
. This Agreement has been duly authorized, executed
and delivered by the Company.
(n)
Descriptions of the Transaction
Documents
. The Securities and the Indenture conform in all
material respects to the description thereof contained under the captions
“Description of Debt Securities” and “Description of the Notes” in the
Registration Statement, the Preliminary Prospectus and the Prospectus,
respectively.
(o)
No Violation or
Default.
Neither the Company nor any of its significant
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
property or assets is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority having jurisdiction over it, except, in the
case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse
Effect.
(p)
No Conflicts.
The
execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company
with the terms thereof and the consummation by the Company of the transactions
contemplated by the Transaction Documents will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a
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 indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or any of its
significant subsidiaries or (iii) result in the violation of any law or statute
or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority having jurisdiction over the Company,
except, in the case of clauses (i) and (iii) above, for any such conflict,
breach, violation or default that would not, individually or in the aggregate,
have a Material Adverse Effect.
(q)
No Consents
Required
. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority having jurisdiction over the Company is required for the
execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company
with the terms thereof and the consummation of the transactions contemplated by
the Transaction Documents, except for such consents, approvals, authorizations,
orders and registrations or qualifications (i) as have been obtained under the
Securities Act and the Trust Indenture Act, (ii) as may be required under
applicable state securities laws in connection with the purchase and
distribution of the Securities by the Underwriters, or (iii) which the failure
to obtain or possess would not, individually or in the aggregate, have a
Material Adverse Effect.
(r)
Legal
Proceedings.
Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, there are no legal,
governmental or regulatory actions, suits or proceedings, or to the knowledge of
the Company, governmental or regulatory investigations, pending to which the
Company or any of its subsidiaries is or is reasonably likely to be a party or
to which any property of the Company or any of its subsidiaries is or is
reasonably likely to be the subject that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect; to the knowledge
of the Company no such investigations, actions, suits or proceedings are
threatened or contemplated by any governmental or regulatory authority or
threatened by others.
(s)
Independent
Accountants.
Deloitte and Touche LLP, which has audited and
reviewed certain financial statements of the Company and its subsidiaries, is an
independent registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and
as required by the Securities Act.
(t)
Title to Real and Personal
Property.
The Company and its significant subsidiaries own,
lease or have the right to use all of their properties as are necessary to the
conduct of the operations of the Company and its significant subsidiaries as
presently conducted and as described in the Registration Statement, the Time of
Sale Information and the Prospectus, except where the failure to own, lease or
have a right to use such properties would not, individually or in the aggregate,
have a Material Adverse Effect.
(u)
Title to Intellectual
Property.
The Company and its significant subsidiaries own or
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) as are necessary for the conduct of their respective
businesses as presently conducted and as described in the Registration
Statement, the Time of Sale Information and the Prospectus, except where the
failure to own or possess such rights would not, individually or in the
aggregate, have a Material Adverse Effect; and, to the knowledge of the Company,
the conduct of their respective businesses as presently conducted does not
conflict in any material respect with any such rights of others, except for such
conflicts as would not, individually or in the aggregate, have a Material
Adverse Effect.
(v)
Investment Company
Act.
The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the Time of Sale Information and the
Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder
(collectively, “Investment Company Act”).
(w)
Licenses and
Permits.
The Company and its significant subsidiaries possess
all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as presently conducted and as described in the
Registration Statement, the Time of Sale Information and the Prospectus, except
where the failure to possess or make the same would not, individually or in the
aggregate, have a Material Adverse Effect.
(x)
No Labor
Disputes.
No labor disturbance by or dispute with groups of
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is threatened, except, in each case, as would not, individually
or in the aggregate, have a Material Adverse Effect.
(y)
Compliance With Environmental
Laws.
Except as are disclosed in the Registration Statement,
the Time of Sale Information and the Prospectus (i) the Company and its
subsidiaries are, and at all prior times were, in compliance with any and all
applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health or
safety, the environment, natural resources, hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii)
there are no costs or liabilities associated with Environmental Laws of or
relating to the Company or its subsidiaries and neither the Company nor any of
its subsidiaries has received notice of any such liability or potential
liability, except in the case of each of (i) and (ii) above, for any such
failure to comply or cost or liability, as would not, individually or in the
aggregate, have a Material Adverse Effect; and (iii) none of the Company and its
subsidiaries anticipates material capital expenditures relating to any
Environmental Laws.
(z)
Disclosure
Controls
. The Company maintains a system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
is designed to ensure that information required to be disclosed by the Company
in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to
ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required
disclosure. The Company has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act. Such disclosure controls and procedures
were effective as of December 31, 2008, and, to the knowledge of the Company,
are effective as of the date hereof and as of the Closing Date.
(aa)
Accounting
Controls.
The Company maintains systems of “internal control
over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act)
that comply with the requirements of the Exchange Act and have been designed by,
or under the supervision of, its principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with U.S. generally
accepted accounting principles. There were no material weaknesses in
the Company’s internal control over financial reporting as of December 31, 2008,
and, to the knowledge of the Company, there are no material weaknesses in its
internal control over financial reporting as of the date hereof and as of the
Closing Date.
(bb)
No Unlawful
Payments.
Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment (in each of clauses (i), (ii), (iii) and (iv), with such exceptions as
are not material). The Company’s internal accounting controls and procedures are
sufficient to cause the Company to comply with Section 78m(b)(2) of the Foreign
Corrupt Practices Act of 1977, as amended.
(cc)
Compliance with Money Laundering
Laws
. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(dd) Compliance
with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or Affiliate of
the Company or any of its subsidiaries is currently designated on the Specially
Designated Nationals and Blocked Persons List (“SDN List”) maintained by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”)
(available on-line at:
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html) or located,
organized or resident in a country or territory that is currently the subject of
economic sanctions administered by OFAC (at the date hereof, Burma/Myanmar,
Cuba, Iran, North Korea, Sudan and Syria); and the Company will not directly or
indirectly use the proceeds of the offering of the Securities hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person that, at the time of such financing, is the subject
of any U.S. sanctions administered by OFAC as described above.
(ee)
Status under the Securities
Act
. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in
each case at the times specified in the Securities Act in connection with the
offering of the Securities.
4.
Further Agreements of the
Company
. The Company covenants and agrees with each
Underwriter that:
(a)
Required
Filings.
The Company will (i) pay the registration fees for
this offering of the Securities within the time period required by Rule
456(b)1(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date, and (ii) file the
Prospectus in a form reasonably approved by the Underwriters with the Commission
pursuant to Rule 424(b) under the Securities Act within the time periods
specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities
Act. The Company will file any Issuer Free Writing Prospectus
(including the Term Sheet in the form of Annex C hereto) to the extent required
by Rule 433 under the Securities Act; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request. The
Company will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and during the Prospectus Delivery Period. As used
herein, the term “Prospectus Delivery Period” means such period of time after
the first date of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities is required
by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Securities by any Underwriter or
dealer.
(b)
Delivery of
Copies.
The Company will deliver, without charge, to each
Underwriter (i) upon request, a conformed copy of the Registration Statement as
originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith and (ii) during the Prospectus Delivery Period, as
many copies of the Prospectus (including all amendments and supplements thereto
and documents incorporated by reference therein) and each Issuer Free Writing
Prospectus as the Representatives may reasonably request.
(c)
Amendments or Supplements; Issuer
Free Writing Prospectuses.
Prior to the completion of the
initial resale of the Securities by the Underwriters, before using or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to
the Registration Statement or the Prospectus, the Company will (i) notify the
Representatives of any such use or filing, (ii) furnish to the Representatives
and counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review (other than any amendments or
supplements made by the filing of documents under the Exchange Act) and (iii)
not use or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Representatives reasonably object
(other than any amendments or supplements made by the filing of documents under
the Exchange Act). The Company’s obligations under this paragraph (c)
shall expire on the Closing Date unless the Representatives shall notify the
Company in writing otherwise on or before the Closing Date, and if such notice
is given, the Company’s obligations under this paragraph (c) shall expire on the
date which is the earlier of (i) six months after the Closing Date and (ii) the
completion of the initial resale of the Securities by the
Underwriters. The Underwriters shall promptly notify the Company of
such completion.
(d)
Notice to the
Representatives.
Until termination of the Prospectus Delivery
Period, the Company will advise the Representatives promptly (or, in the case of
clauses (v) and (vi), promptly upon the Company becoming aware thereof), and
confirm such advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective (other than any amendments made by
the filing of documents under the Exchange Act); (ii) when any supplement to the
Prospectus or any amendment to the Prospectus or any Issuer Free Writing
Prospectus has been filed (other than any amendments or supplements made by the
filing of documents under the Exchange Act); (iii) of any request by the
Commission to the Company for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or the receipt of any comments from
the Commission relating to the Registration Statement or any other request by
the Commission to the Company for any additional information; (iv) of the
issuance by the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary
Prospectus or the Prospectus, (v) of the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act;
(vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Time of Sale Information or any Issuer Free
Writing Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus, the Time of Sale
Information or any such Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading; (vii) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities
Act; and (viii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or upon the Company becoming aware of the initiation or threatening
of any proceeding for such purpose; and the Company will use its reasonable
efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of the
Preliminary Prospectus or the Prospectus or suspending any such qualification of
the Securities and, if any such order is issued, will use reasonable efforts to
obtain as soon as possible the withdrawal thereof.
(e)
Time of Sale
Information.
If at any time prior to the Closing Date (i) any
event shall occur or condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances, not misleading or
(ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will promptly notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission
(to the extent required) and furnish to the Underwriters and to such dealers as
the Representatives may designate, such amendments or supplements to the Time of
Sale Information as may be necessary so that the statements in the Time of Sale
Information as so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Time of Sale Information will comply
with law.
(f)
Ongoing
Compliance
. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will promptly notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission
and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with
law
(g)
Blue Sky
Compliance.
The Company will take such actions as the
Representatives reasonably request to qualify the Securities for offer and sale
by the Underwriters under the securities or Blue Sky laws of such jurisdictions
as the Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of the Securities;
provided
that
the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it
would not otherwise be required to so qualify, (ii) file or take any action that
would constitute a general consent to service of process in any such
jurisdiction or (iii) subject itself or any of its affiliates to taxation in any
such jurisdiction if it is not otherwise so subject.
(h)
Earning
Statement.
The Company will make generally available to its
security holders as soon as reasonably practicable an earning statement that
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after
the “effective date” (as defined in Rule 158) of the Registration
Statement.
(i)
Clear
Market.
During the period from the date hereof through and
including the Closing Date, the Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise
dispose of any debt securities issued or guaranteed by the Company and having a
tenor of more than one year.
(j)
Use of
Proceeds.
The Company will apply the net proceeds from the
sale of the Securities as described in the Registration Statement, the Time of
Sale Information and the Prospectus under the heading “Use of
proceeds”.
(k)
No
Stabilization.
Until the termination of the Prospectus
Delivery Period, the Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
(l)
Record
Retention
. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5
.
Certain Agreements of the
Underwriters
. Each Underwriter hereby represents and agrees
that
(a) It
has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under
the Securities Act (which term includes use of any written information furnished
to the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing
prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free
Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or
Section 4(c) above (including any electronic road show), or (iii) any free
writing prospectus prepared by such underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i)
or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding
the foregoing, the Underwriters may use a term sheet substantially in the form
of Annex C hereto without the consent of the Company.
(b)
It is not subject to any pending proceeding under Section 8A of the Securities
Act with respect to the offering (and will promptly notify the Company if any
such proceeding against it is initiated during the Prospectus Delivery
Period).
6.
Conditions of Underwriters'
Obligations.
The obligation of each Underwriter to purchase
Securities on the Closing Date as provided herein is subject to the performance
by the Company of its covenants and other obligations hereunder and to the
following additional conditions:
(a)
No Stop Order.
No
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or
pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Securities
Act (in the case of an Issuer Free Writing Prospectus, to the extent required by
Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the
Representatives.
(b)
Representations and
Warranties.
The representations and warranties of the Company
contained herein shall be true and correct on the date hereof, at the Time of
Sale and on and as of the Closing Date; and the statements of the Company and
its officers made in any certificates delivered pursuant to this Agreement shall
be true and correct on and as of the Closing Date.
(c)
No
Downgrade.
Subsequent to the earlier of (A) the Time of Sale
and (B) the execution and delivery of this Agreement, (i) no downgrading shall
have occurred in the rating accorded the Securities or any other debt securities
of the Company by any “nationally recognized statistical rating organization”,
as such term is defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act and (ii) no such organization shall have publicly announced
that it has under surveillance or review with possible negative implications its
rating of the Securities or of any other debt securities of the Company (other
than an announcement with positive implications of a possible
upgrading).
(d)
No Material Adverse
Change.
No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not
described in the Time of Sale Information (excluding any amendment or supplement
thereto) and the Prospectus (excluding any amendment or supplement thereto) and
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement,
the Time of Sale Information and the Prospectus.
(e)
Officer's
Certificate.
The Representatives shall have received on and as
of the Closing Date a certificate of an executive officer of the Company who has
specific knowledge of the Company’s financial matters and is reasonably
satisfactory to the Representatives (i) confirming that such officer has
carefully reviewed the Registration Statement, the Time of Sale Information and
the Prospectus and, to the knowledge of such officer, the representations of the
Company set forth in Sections 3(a), 3(b), 3(c) and 3(d) hereof are true and
correct, (ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct and that the Company has complied
with all agreements on its part to be performed or satisfied hereunder at or
prior to the Closing Date and (iii) to the effect set forth in paragraph (a)
above.
(f)
Comfort
Letters.
On the date of this Agreement and on the Closing
Date, Deloitte & Touche LLP shall have furnished to the Representatives, at
the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus;
provided
that the
letter delivered on the Closing Date shall use a “cut-off” date no more than
three business days prior to the Closing Date.
(g)
Opinion and Negative Assurance
Statement of Counsel for the Company.
The Representatives
shall have received on and as of the Closing Date (i) an opinion and negative
assurance statement of Chadbourne & Parke LLP, counsel for the Company,
dated the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, substantially to the effect set
forth in Annex A-1 hereto, and (ii) an opinion of the general counsel of the
Company, dated the Closing Date and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, substantially to the
effect set forth in Annex A-2 hereto.
(h)
Opinion and Negative Assurance
Statement of Counsel for the Underwriters.
The Representatives
shall have received on and as of the Closing Date an opinion and negative
assurance statement of Davis Polk & Wardwell, counsel for the Underwriters,
with respect to such matters as the Representatives may reasonably request, and
such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(i)
No Legal Impediment to
Issuance.
No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date, prevent the issuance or sale of the Securities; and no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(j)
Good Standing
. The
Representatives shall have received on and as of the Closing Date satisfactory
evidence of the good standing of the Company and its significant subsidiaries
(to the extent such concept is relevant in their respective jurisdictions of
organization) in their respective jurisdictions of organization and their good
standing in such other jurisdictions as the Representatives may reasonably
request, in each case in writing or any standard form of telecommunication from
the appropriate governmental authorities of such jurisdictions.
(k)
Additional
Documents.
On or prior to the Closing Date, the Company shall
have furnished to the Representatives such further customary certificates and
documents as the Representatives may reasonably request.
All opinions, letters, certificates and
evidence mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and substance
reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and
Contribution
.
(a)
Indemnification of the
Underwriters.
The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
reasonable outside legal fees and other expenses reasonably incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, to which they may become
subject insofar as such losses, claims, damages or liabilities arise out of, or
are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, not misleading, or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus or any Time of Sale Information, or caused by any
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with Underwriter Information.
(b)
Indemnification of the
Company.
Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any Underwriter Information in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus or any Time of Sale Information, it being understood and
agreed that such information consists only of the following (collectively, the
“Underwriter Information”): (1) the information in the last paragraph of the
cover page of the Preliminary Prospectus and the Prospectus regarding the
delivery of the Securities; (2) the names of the Underwriters on the cover page
of the Preliminary Prospectus and the Prospectus; (3) the names of the
Underwriters in the table in the first paragraph under the caption
“Underwriting” in the Preliminary Prospectus and the Prospectus; and (4) the
third, seventh (third and fourth sentences only) and eighth paragraphs under the
caption “Underwriting” in the Preliminary Prospectus and the
Prospectus.
(c)
Notice and
Procedures.
If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may
be sought (the “Indemnifying Person”) in writing;
provided
that the
failure to notify the Indemnifying Person shall not relieve the Indemnifying
Person from any liability that it may have under this Section 7 except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and
provided
,
further
, that the
failure to notify the Indemnifying Person shall not relieve the Indemnifying
Person from any liability that it may have to an Indemnified Person otherwise
than under this Section 7. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the Indemnified Person promptly after receiving the aforesaid
notice from such Indemnified Person, to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such proceeding and shall pay
the fees and expenses of counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but, upon receipt of notice from the
Indemnifying Person to such Indemnified Person of such Indemnifying Person’s
election to assume the defense of such action and approval by the Indemnified
Person of counsel as set forth above, the Indemnifying Person will not be liable
to such Indemnified Person under this Section 7 for any legal or other
expenses subsequently incurred by such Indemnified Person in connection with the
defense thereof unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary; (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded
that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that
the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be
designated in writing by the Representatives and any such separate firm for the
Company, its directors and officers and any control persons of the Company shall
be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d)
Contribution.
If
the indemnification provided for in paragraphs (a) and (b) above is unavailable
to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) 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 that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from the sale of
the Securities and the total underwriting discounts and commissions received by
the Underwriters in connection therewith, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e)
Limitation on
Liability.
The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by
pro
rata
allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with any such action or claim under this
Section 7. Notwithstanding the provisions of this Section 7, in no
event shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f)
Non-Exclusive
Remedies.
The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.
8.
Effectiveness of
Agreement
. This Agreement shall become effective
upon the execution and delivery hereof by the parties
hereto.
9.
Termination
. This
Agreement may be terminated in the absolute discretion of the Representatives,
by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter
market; (ii) trading of any securities issued or guaranteed by the Company shall
have been suspended on the New York Stock Exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
that, in the judgment of the Representatives, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the terms and in the manner contemplated by this Agreement,
the Time of Sale Information and the Prospectus. Notwithstanding
anything to the contrary in this Agreement, any termination of this Agreement
pursuant to this Section 9 shall be without liability on the part of the
Underwriters or the Company, except that the Company and the Underwriters will
continue to be liable for the payment of expenses as set forth in Section 11
hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.
10.
Defaulting
Underwriter
. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Securities that it has
agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons
reasonably satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of 36
hours within which to procure other persons reasonably satisfactory to the
non-defaulting Representatives to purchase such Securities on such
terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter within such time periods, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to five full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any
such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in Schedule 1 hereto that, pursuant to this
Section 10, purchases Securities that a defaulting Underwriter agreed but failed
to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate principal amount
of such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities that such Underwriter agreed to purchase hereunder plus
such Underwriter's
pro
rata
share (based on
the principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate principal amount
of such Securities that remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters or
the Company, except that the Company and the Underwriters will continue to be
liable for the payment of expenses as set forth in Section 11(a) hereof and
except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its
default.
11.
Payment of
Expenses
.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus (including all
exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company's counsel and independent
accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representatives may
reasonably designate and the preparation, printing and distribution of a Blue
Sky Memorandum (including the related fees and expenses of counsel for the
Underwriters in connection with such Blue Sky Memorandum, not to exceed
$10,000); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); and (viii) all
expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, the Financial Industry Regulatory
Authority. It is understood and agreed, however, that, except as
provided in this Section 11 and in Section 7 hereof, the Underwriters will pay
all of their own costs and expenses, including the fees of their
counsel.
(b) If
(i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any
reason fails to tender the Securities for delivery to the Underwriters (other
than pursuant to Section 10) or (iii) the Underwriters decline to purchase the
Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriters for all out-of-pocket costs and expenses (including
the fees and expenses of their counsel) reasonably incurred by the Underwriters
in connection with this Agreement and the offering contemplated
hereby.
12.
Persons Entitled to Benefit
of Agreement
. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and, in the
case of Section 7, each Indemnified Person. Nothing in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13.
Survival
. Each
of (i) the respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of the Company or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto and (ii) this
Section 13 and Section 15(c), shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the
Company or the Underwriters or any of the officers, directors or controlling
persons of the Company or the Underwriters.
14.
Certain Defined
Terms
. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; (c) the term "subsidiary" has the meaning set forth in Rule 405 under
the Securities Act; and (d) the term "significant subsidiary" has the meaning
set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
15.
Miscellaneous
. (a)
Authority of the
Representatives.
Any action by the Underwriters hereunder may
be taken by the Representatives on behalf of the Underwriters, and any such
action taken by the Representatives shall be binding upon the Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by the
Representatives.
(b)
Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Underwriters shall
be given to the Representatives c/o Banc of America Securities LLC, One Bryant
Park, NY1-100-18-03, New York, New York 10036 (fax: 646-855-5958); Attention:
High Grade Transaction Management/Legal, J.P. Morgan Securities Inc., 270 Park
Avenue, New York, New York 10017 (fax: 212-834-6081); Attention: High Grade
Syndicate Desk and UBS Securities LLC, 677 Washington Boulevard, Stamford, CT
06901 (fax: 203-719-0494); Attention: Fixed Income Syndicate. Notices
to the Company shall be given to it at Rockwell Collins, Inc., 400 Collins Road
NE, Cedar Rapids, IA 52488 (fax: 319-295-3599); Attention: Senior Vice
President, General Counsel and Secretary.
(c)
Governing
Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d)
Counterparts.
This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
(e)
Amendments or
Waivers.
No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f)
Headings.
The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
If the foregoing is in accordance with
your understanding, please indicate your acceptance of this Agreement by signing
in the space provided below. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters but without warranty on your
part as to the authority of the signers thereof.
|
|
Very
truly yours,
|
|
|
|
|
|
ROCKWELL
COLLINS, INC.
|
|
|
|
|
|
By
|
/s/ Patrick E. Allen
|
|
|
|
Name:
|
Patrick
E. Allen
|
|
|
|
Title:
|
Senior
Vice President and Chief
|
|
|
|
|
Financial
Officer
|
Accepted:
May 1, 2009
J.P.
MORGAN SECURITIES INC.
BANC OF
AMERICA SECURITIES LLC
UBS
SECURITIES LLC
For
themselves and on behalf of the
several
Underwriters listed
in
Schedule 1 hereto.
|
By:
|
BANC
OF AMERICA SECURITIES LLC
|
|
|
|
|
|
|
By:
|
/s/
Joseph A. Crowley
|
|
|
|
Name:
|
Joseph
A. Crowley
|
|
|
|
Title:
|
Vice
President
|
|
|
By:
|
J.P.
MORGAN SECURITIES INC.
|
|
|
|
|
|
|
By:
|
/s/
Robert Bottamedi
|
|
|
|
Name:
|
Robert
Bottamedi
|
|
|
|
Title:
|
Vice
President
|
|
|
By:
|
UBS
SECURITIES LLC
|
|
|
|
|
|
|
By:
|
/s/
John Doherty
|
|
|
|
Name:
|
John
Doherty
|
|
|
|
Title:
|
Managing
Director
|
|
|
By:
|
/s/
Christopher Fernando
|
|
|
|
Name:
|
Christopher
Fernando
|
|
|
|
Title:
|
Associate
Director, Debt Capital Markets
|
|
Schedule
1
|
Underwriter
|
|
Principal Amount
|
|
|
Banc
of America Securities LLC
|
|
$
|
75,000,000
|
|
|
J.P.
Morgan Securities Inc.
|
|
$
|
75,000,000
|
|
|
UBS
Securities LLC
|
|
$
|
75,000,000
|
|
|
Citigroup
Global Markets Inc.
|
|
$
|
21,000,000
|
|
|
Wachovia
Capital Markets, LLC
|
|
$
|
21,000,000
|
|
|
BNY
Mellon Capital Markets, LLC
|
|
$
|
6,000,000
|
|
|
Calyon
Securities (USA) Inc.
|
|
$
|
6,000,000
|
|
|
KeyBanc
Capital Markets Inc.
|
|
$
|
6,000,000
|
|
|
Mitsubishi
UFJ Securities (USA), Inc.
|
|
$
|
6,000,000
|
|
|
U.S.
Bancorp Investments, Inc.
|
|
$
|
6,000,000
|
|
|
Mizuho
Securities USA Inc.
|
|
$
|
3,000,000
|
|
|
Total
|
|
$
|
300,000,000
|
|
Annex
A-1
Form of
Opinion of Chadbourne & Parke LLP
May 6,
2009
|
Banc
of America Securities LLC
J.P.
Morgan Securities Inc.
UBS
Securities LLC
As
representatives of the several Underwriters named in Schedule 1 to the
Underwriting Agreement, dated May 1, 2009, between Rockwell Collins, Inc.
and Banc of America Securities LLC, J.P. Morgan Securities Inc. and UBS
Securities LLC, as representatives of such Underwriters
c/o
J.P. Morgan Securities Inc.
270
Park Avenue
New
York, New York 10017
|
|
Ladies
and Gentlemen:
We have acted as counsel to Rockwell
Collins, Inc., a Delaware corporation (the "Company"), in connection with the
preparation, execution and delivery of the Underwriting Agreement, dated May 1,
2009 (the "Underwriting Agreement"), between the Company and Banc of America
Securities LLC, J.P. Morgan Securities Inc. and UBS Securities LLC, as
representatives of the several Underwriters named in Schedule 1 to the
Underwriting Agreement (collectively, the "Underwriters"), providing for, among
other things, the issuance and sale by the Company and the purchase by the
Underwriters of $300 million aggregate principal amount of the Company's 5.25 %
Notes due July 15, 2019 (the "Securities"). This opinion is being
furnished to you pursuant to Section 6(g) of the Underwriting
Agreement.
Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Underwriting Agreement.
In
rendering the opinions set forth herein, we have examined and relied on
originals or copies of the following:
(a) the
Company's Registration Statement on Form S-3 (Registration No. 333-156442) filed
with the Commission on December 23, 2008 (the "Registration
Statement");
(b) the
Prospectus dated December 23, 2008 contained in the Registration Statement (the
"Basic Prospectus");
(c) the
Preliminary Prospectus Supplement dated May 1, 2009 filed by the Company with
the Commission on May 1, 2009 pursuant to Rule 424(b) under the Act (together
with the Basic Prospectus, the "Preliminary Prospectus");
(d) the
Prospectus Supplement dated May 1, 2009 filed by the Company with the Commission
on May 4, 2009 pursuant to Rule 424(b) under the Act (together with the Basic
Prospectus, the "Prospectus");
(e) the
final term sheet in the form attached as Annex C to the Underwriting Agreement
(together with the Preliminary Prospectus, the "Time of Sale
Information");
(f) the
Underwriting Agreement;
(g) the
Indenture;
(h) the
Securities;
(i) the
corporate proceedings taken by the Company in connection with the authorization,
execution and issuance of the Securities and execution and delivery of the
Underwriting Agreement and the Indenture; and
(j) such
other documents as we have deemed necessary or appropriate as a basis for the
opinions set forth below.
In our examination we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as facsimile, electronic, certified, conformed or photostatic copies, and the
authenticity of the originals of such copies. As to various questions
of fact material to the opinions set forth herein we have, when relevant facts
were not independently established, relied upon certifications by officers of
the Company and other appropriate persons.
Based upon the foregoing, having regard
for such legal considerations as we deem relevant, and subject to the
limitations, qualifications, exceptions and assumptions set forth herein, we are
of the opinion 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 or lease its properties and
conduct its business as described in the Time of Sale Information and the
Prospectus.
(iii) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(iv) The
Indenture has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
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
Securities have been duly authorized by all necessary corporate action of the
Company, and, when duly executed, issued and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement, will be valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, 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 provided by the Indenture.
(vi) The
terms of the Indenture and the Securities conform in all material respects to
the descriptions thereof contained in the Time of Sale Information and the
Prospectus.
(vii) The
Indenture has been duly qualified under the Trust Indenture Act.
(viii) The
Registration Statement is an “automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof, each Issuer Free Writing
Prospectus set forth on Annex C to the Underwriting Agreement was filed with the
Commission in accordance with the Securities Act (to the extent required
thereby), each of the Preliminary Prospectus and the Prospectus was filed with
the Commission pursuant to Rule 424(b) under the Securities Act on the date
specified therein, and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act, no notice of objection of the Commission to the use of such Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act has been received by the Company and no proceedings for
that purpose or pursuant to Section 8A of the Securities Act against the Company
or in connection with the offering has been initiated or threatened by the
Commission.
(ix) The
Registration Statement, the Preliminary Prospectus and the Prospectus (other
than the financial statements and schedules and other financial data (and
statistical data derived therefrom) included or incorporated by reference
therein, as to which no opinion is given) comply as to form in all material
respects with the requirements of the Securities Act; and the Indenture complies
as to form in all material respects with the requirements of the Trust Indenture
Act (other than, in each case set forth in this clause (ix), Form T-1, as to
which no opinion is given).
(x) The
documents filed by the Company pursuant to the Exchange Act prior to the Closing
Date and incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus (other than the financial statements
and schedules and other financial data (and statistical data derived therefrom)
included or incorporated by reference therein, as to which no opinion is given),
when they were filed with the Commission, complied as to form in all material
respects with the Exchange Act.
(xi) No
consent, approval, authorization or order of any court or governmental authority
or agency or body of the State of New York, the United States of America or the
State of Delaware is required under any law of the State of New York, any law of
the United States of America or the General Corporation Law of the State of
Delaware, respectively, applicable to the Company that, in our experience, is
generally applicable to transactions of the nature of those contemplated by the
Underwriting Agreement, the Indenture and the Securities for the issuance and
sale of the Securities by the Company to the Underwriters pursuant to the
Underwriting Agreement and the Indenture, except such as have been obtained
under the Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations and qualifications as may be
required under state securities laws or blue sky laws.
(xii) To
our knowledge, the execution, delivery and performance of the Underwriting
Agreement and the Indenture by the Company and the consummation of the
transactions contemplated therein by the Company will not result in any
violation of any law of the State of New York or of the General Corporation Law
of the State of Delaware applicable to the Company that, in our experience, is
generally applicable to transactions of the nature of those contemplated by the
Underwriting Agreement, the Indenture and the Securities.
(xiii) The
statements in the Preliminary Prospectus and the Prospectus under the heading
“Material United States Federal Tax Considerations” insofar as they purport to
describe the provisions of the laws referred to therein, are fair descriptions
or summaries in all material respects, subject to the qualifications and
limitations set forth therein.
(xiv)
The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Registration Statement, the Preliminary Prospectus and the
Prospectus, will not be an “investment company” within the meaning of the
Investment Company Act.
Our
opinions set forth above are subject to the following qualifications and
limitations:
(a) the
enforceability of the Indenture and the Securities may be limited by statutory
requirements with respect to good faith, fair dealing and commercial
reasonableness and by the effect of judicial decisions that have held that
certain provisions are unenforceable where their enforcement would violate the
implied covenant of good faith and fair dealing, or would be commercially
unreasonable, or where a default is not material;
(b) the
availability of equitable remedies, including, without limitation, specific
enforcement and injunctive relief, is subject to the discretion of the court
before which any proceeding therefor may be brought;
(c) when
in clause (viii) of this opinion we have used the phrase "to our knowledge", we
have not made any independent investigation of the relevant facts for purposes
of this opinion, but we have relied on the representations made in the
Underwriting Agreement and in certificates of public officials and of officers
and other agents of the Company, and the principal attorneys involved in our
representation of the Company in connection with the review of the Underwriting
Agreement, the Indenture and the Securities are not aware of any facts
inconsistent therewith;
(d) when
in clause (xii) of this opinion we have used the phrase "to our knowledge", the
knowledge is limited to the actual knowledge of the principal attorneys involved
in our representation of the Company in connection with the review of the
Underwriting Agreement, the Indenture and the Securities; and
(e) in
giving our opinions set forth above, we express no opinion as to:
1.
the enforceability of any
provisions contained in the Indenture or the Securities that purport to
establish (or may be construed to establish) evidentiary standards;
2.
the enforceability of forum
selection clauses in the United States federal courts;
3.
the validity, binding effect or
enforceability of any provision relating to or constituting: (i)
waivers of rights bestowed by operation of law; (ii) waivers of any applicable
defenses, setoffs, recoupments or counterclaims to the extent limited by public
policy; or (iii) exculpation or exoneration clauses to the extent that
enforceability thereof is limited by public policy or such clauses relate to
violation of federal or state securities laws;
4.
the legality, validity, binding effect or
enforceability of any provisions of the Indenture or the Securities insofar as
they provide for the payment or reimbursement of costs and expenses or
indemnification for claims, losses or liabilities in excess of a reasonable
amount determined by any court or other tribunal;
5. the
effect of compliance or noncompliance of the Trustee or the Underwriters with
any laws or regulations (including, without limitation, any unpublished order,
decree or directive issued by any governmental authority) applicable to the
Trustee or any Underwriter because of its legal or regulatory status, the nature
of its business, or its authority to conduct business in any
jurisdiction;
6. the
legality, validity, binding effect or enforceability of provisions indemnifying
a party against liability for its own wrongful or negligent act;
7. the
enforceability of any provisions of the Indenture or the Securities that provide
that the assertion or employment of any right or remedy shall not prevent the
concurrent assertion or employment of any other right or remedy, or that each
and every remedy shall be cumulative and in addition to every other remedy or
that any delay or omission to exercise any right or remedy shall not impair any
other right or remedy or constitute a waiver thereof;
8. the
enforceability of any provisions providing for indemnification or contribution
to the extent such indemnification or contribution violates the Act, the
Exchange Act or the securities laws of any state, or is against public policy;
and
9. the
enforceability, legality, validity or sufficiency of the Indenture or the
Securities to the extent that the lack of enforceability, legality, validity or
sufficiency under the laws or public policy of any jurisdiction other than New
York would cause the Indenture or the Securities to be unenforceable, illegal,
invalid or insufficient under the laws of New York or the United States of
America.
We do not express any opinion herein
with respect to the laws of any jurisdiction other than the federal laws of the
United States of America, the laws of the State of New York and the General
Corporation Law of the State of Delaware; provided that we do not express any
opinion herein with respect to any blue sky laws.
This opinion is being furnished only to
you in connection with the Underwriting Agreement and is solely for your benefit
and is not to be used, circulated, quoted or otherwise referred to for any other
purpose or relied upon by any other person or entity for any purpose without our
prior written consent. The opinions expressed herein are given to you
as of the Closing Date and we assume no obligation to advise you of any change
which may thereafter be brought to our attention.
Very truly yours,
May 6,
2009
|
Banc
of America Securities LLC
J.P.
Morgan Securities Inc.
UBS
Securities LLC
As representatives of the several
Underwriters named in Schedule 1 to the Underwriting Agreement, dated May
1, 2009, between Rockwell Collins, Inc. and Banc of America Securities
LLC, J.P. Morgan Securities Inc. and UBS Securities LLC, as
representatives of such Underwriters
c/o
J.P. Morgan Securities Inc.
270
Park Avenue
New
York, New York 10017
|
|
Ladies
and Gentlemen:
We have acted as counsel to Rockwell
Collins, Inc., a Delaware corporation (the "Company"), in connection with the
preparation, execution and delivery of the Underwriting Agreement, dated May 1,
2009 (the "Underwriting Agreement"), between the Company and Banc of America
Securities LLC, J.P. Morgan Securities Inc. and UBS Securities LLC, as
representatives of the several Underwriters named in Schedule 1 to the
Underwriting Agreement (collectively, the "Underwriters"), providing for, among
other things, the issuance and sale by the Company and the purchase by the
Underwriters of $300 million aggregate principal amount of the Company's 5.25 %
Notes due July 15, 2019 (the "Securities").
Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Underwriting Agreement.
In connection with the above-mentioned
purchase and sale of the Securities, the Company has prepared (i) the
Registration Statement on Form S-3 (Registration No. 333-156442) filed with the
Commission on December 23, 2008 (the "Registration Statement"); (ii) the
Prospectus dated December 23, 2008 contained in the Registration Statement
(together with the documents incorporated by reference therein, the "Basic
Prospectus"); (iii) the Preliminary Prospectus Supplement dated May 1, 2009
filed by the Company with the Commission on May 1, 2009 pursuant to Rule 424(b)
under the Act (together with the Basic Prospectus, the "Preliminary
Prospectus"); (iv) the Prospectus Supplement dated May 1, 2009 filed by the
Company with the Commission on May 4, 2009 pursuant to Rule 424(b) under the Act
(together with the Basic Prospectus, the "Prospectus"); and (v) the final term
sheet attached as Annex C to the Underwriting Agreement (together with the
Preliminary Prospectus, the "Time of Sale Information").
We have reviewed the Registration
Statement, the Preliminary Prospectus, the Time of Sale Information and the
Prospectus and we have participated in conferences with representatives of the
Company, representatives of the Company's independent public accountants and
representatives of the Underwriters at which conferences the contents of the
Registration Statement, the Time of Sale Information or the Prospectus were
discussed.
We have not verified and we are not
passing on, and we do not assume any responsibility for the accuracy,
completeness or fairness of, the statements contained in the Registration
Statement, the Time of Sale Information or the Prospectus (except as to the
extent stated in subparagraphs vi and xiii of our opinion dated the date hereof
delivered to you in connection with the Underwriting Agreement), including the
documents incorporated by reference therein. However, on the basis of
and subject to the foregoing, and having regard for legal considerations that we
deem relevant, we hereby advise you that no facts have come to our attention
that causes us to believe that: (i) as of the date of the Underwriting
Agreement, the Registration Statement (other than the financial statements and
schedules and other financial data (and statistical data derived therefrom)
included or incorporated by reference therein, as to which we express no view)
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, (ii) as of the Time of Sale, the Time of Sale Information (other
than the financial statements and schedules and other financial data (and
statistical data derived therefrom) included or incorporated by reference
therein, as to which we express no view) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (iii) as of its date and the Closing Date, the
Prospectus (other than the financial statements and schedules and other
financial data (and statistical data derived therefrom) included or incorporated
by reference therein, as to which we express no view) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. We express no belief in this letter as to
the conveyance of the Time of Sale Information or the Prospectus to any
purchaser of the Securities.
This letter is being furnished only to
you in connection with the Underwriting Agreement and is solely for your benefit
and is not to be used, circulated, quoted or otherwise referred to for any other
purpose or relied upon by any other person or entity for any purpose without our
prior written consent. This letter is being given to you as of the
Closing Date and we assume no obligation to advise you of any change which may
thereafter be brought to our attention.
Very truly yours,
Annex
A-2
Form of
Opinion of General Counsel of the Company
May 6,
2009
|
Banc
of America Securities LLC
J.P.
Morgan Securities Inc.
UBS
Securities LLC
As
representatives of the several Underwriters named in Schedule 1 to the
Underwriting Agreement, dated May 1, 2009, between Rockwell Collins, Inc.
and Banc of America Securities LLC, J.P. Morgan Securities Inc. and UBS
Securities LLC, as representatives of such Underwriters
c/o
J.P. Morgan Securities Inc.
270
Park Avenue
New
York, New York 10017
|
|
Ladies
and Gentlemen:
I am the General Counsel of Rockwell
Collins, Inc., a Delaware corporation (the "Company"), and in that capacity, I,
or lawyers under my supervision, have acted as counsel to the Company in
connection with the preparation, execution and delivery of the Underwriting
Agreement, dated May 1, 2009 (the "Underwriting Agreement"), between the Company
and Banc of America Securities LLC, J.P. Morgan Securities Inc. and UBS
Securities LLC, as representatives of the several Underwriters named in Schedule
1 to the Underwriting Agreement (collectively, the "Underwriters"), providing
for, among other things, the issuance and sale by the Company and the purchase
by the Underwriters of $300 million aggregate principal amount of the Company's
5.25 % Notes due July 15, 2019 (the "Securities"). This opinion is
being furnished to you pursuant to Section 6(g) of the Underwriting
Agreement.
Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Underwriting Agreement.
In
rendering the opinions set forth herein, I, or lawyers under my supervision,
have examined and relied on originals or copies of the following:
(a) the
Company's Registration Statement on Form S-3 (Registration No. 333-156442) filed
with the Commission on December 23, 2008 (the "Registration
Statement");
(b) the
Prospectus dated December 23, 2008 contained in the Registration Statement (the
"Basic Prospectus");
(c) the
Preliminary Prospectus Supplement dated May 1, 2009 filed by the Company with
the Commission on May 1, 2009 pursuant to Rule 424(b) under the Act (together
with the Basic Prospectus, the "Preliminary Prospectus");
(d) the
Prospectus Supplement dated May 1, 2009 filed by the Company with the Commission
on May 4, 2009 pursuant to Rule 424(b) under the Act (together with the Basic
Prospectus, the "Prospectus");
(e) the
final term sheet attached as Annex C to the Underwriting Agreement (together
with the Preliminary Prospectus, the "Time of Sale Information");
(f) the
Underwriting Agreement;
(g) the
Indenture;
(h) the
Securities;
(i) the
corporate proceedings taken by the Company in connection with the authorization,
execution and issuance of the Securities and execution and delivery of the
Underwriting Agreement and the Indenture; and
(j) such
other documents as we have deemed necessary or appropriate as a basis for the
opinions set forth below.
In our examination we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as facsimile, electronic, certified, conformed or photostatic copies, and the
authenticity of the originals of such copies. As to various questions
of fact material to the opinions set forth herein, I, or lawyers under my
supervision, have, when relevant facts were not independently established,
relied upon certifications by officers of the Company and other appropriate
persons.
Based
upon the foregoing, having regard for such legal considerations as I deem
relevant, and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, I am of the opinion that:
1. The
Company is duly qualified as a foreign corporation and is in good standing in
the States of California and Iowa and in each other jurisdiction wherein the
character of the property owned or held under lease by it makes such
qualification necessary, except in such jurisdictions where the failure so to
qualify or to be in good standing would not have a Material Adverse
Effect.
2. Each
of Rockwell Collins European Holdings S.ar.L., Rockwell Collins International
Financing S.ar.L. and Rockwell Collins International Holdings S.ar.L
(collectively, the "Significant Subsidiaries") is a subsidiary of the Company,
has been duly incorporated or organized and is validly existing in good standing
under the laws of the jurisdiction of its incorporation or organization and is
duly qualified and is in good standing as a foreign corporation or other entity
in each jurisdiction wherein the character of the property owned or held under
lease by it makes such qualification necessary, except in such jurisdictions
where the failure so to qualify or to be in good standing would not have a
Material Adverse Effect; the outstanding shares of capital stock of each such
Significant Subsidiary (except for directors' qualifying shares) are validly
issued, fully paid and nonassessable; and all of such capital stock is directly
or indirectly owned by the Company free and clear of any lien, encumbrance,
security interest, restriction on voting or transfer or any preemptive or
similar rights in favor of any third party.
3. The
execution, delivery and performance of the Underwriting Agreement and the
Indenture by the Company and the consummation of the transactions contemplated
therein by the Company 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 material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of its
subsidiaries is a party or, to my knowledge, by which it or any of them is 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, as amended, or any material violation of any law, administrative
regulation or administrative or court decree applicable to the
Company.
4. There
is no litigation or governmental proceeding pending or, to my knowledge,
threatened against the Company or any of its subsidiaries which is required to
be disclosed in the Registration Statement, the Time of Sale Information or the
Prospectus which is not adequately disclosed therein; and except as may be
disclosed in the Time of Sale Information and the Prospectus, there is no such
litigation or governmental proceeding pending or, to my knowledge, threatened
against the Company or any of its subsidiaries which could, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
5. Other
than the Underwriting Agreement and the form of the Securities which will be
filed by the Company on a current report on Form 8-K and incorporated by
reference in the Registration Statement, to my 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 Registration
Statement, the Time of Sale Information or the Prospectus which are not
adequately disclosed therein.
I do not
express any opinion herein as to the laws of any jurisdiction other than the
federal laws of the United States of America and the laws of the State of
Iowa.
This opinion is being furnished only to
you in connection with the Underwriting Agreement and is solely for your benefit
and is not to be used, circulated, quoted or otherwise referred to for any other
purpose or relied upon by any other person or entity for any purpose without my
prior written consent. The opinions expressed herein are given to you
as of the Closing Date and I assume no obligation to advise you of any change
which may thereafter be brought to my attention.
|
|
Very
truly yours,
|
|
|
|
|
|
|
|
|
Gary
R. Chadick
|
|
|
Senior
Vice President,
|
|
|
General
Counsel and Secretary
|
Annex
B
Issuer
Free Writing Prospectus
Pricing Term Sheet dated May 1,
2009
Annex
C
ROCKWELL
COLLINS, INC.
Pricing Term
Sheet
|
Issuer:
|
Rockwell
Collins, Inc.
|
|
Size:
|
$300,000,000
|
|
Expected
Ratings:
|
Moody’s:
A1 (stable outlook)
S&P:
A (stable outlook)
Fitch:
A (stable outlook)
|
|
Pricing
Date:
|
May
1, 2009
|
|
Settlement
Date:
|
T+3;
May 6, 2009
|
|
Maturity
Date:
|
July
15, 2019
|
|
Coupon:
|
5.25%
|
|
Interest
Payment Dates:
|
January
15th and July 15th, commencing July 15th, 2009
|
|
Price
to the public:
|
99.471%
of face amount
|
|
Yield
to maturity:
|
5.319%
|
|
Benchmark
Treasury:
|
2.75%
Notes due February 15, 2019
|
|
Benchmark
Treasury Price:
|
96-16
|
|
Benchmark
Treasury Yield:
|
3.169%
|
|
Spread
to Benchmark Treasury:
|
215
basis points
|
|
Redemption
Provisions:
|
|
|
Make-whole
Redemption
|
At
any time at the greater of 100% or a discount rate of Treasury Rate plus
35 basis points
|
|
CUSIP/ISIN:
|
774341AB7
/ US774341AB70
|
|
Underwriters
|
Banc
of America Securities LLC
|
|
|
J.P.
Morgan Securities Inc.
|
|
|
UBS
Securities LLC
|
|
|
Citigroup
Global Markets Inc.
|
|
|
Wachovia
Capital Markets, LLC
|
|
|
BNY
Mellon Capital Markets, LLC
|
|
|
Calyon
Securities (USA) Inc.
|
|
|
KeyBanc
Capital Markets Inc.
|
|
|
Mitsubishi
UFJ Securities (USA), Inc.
|
|
|
U.S.
Bancorp Investments, Inc.
|
|
|
Mizuho
Securities USA Inc.
|
A
securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America
Securities LLC at 1-800-294-1322, J.P. Morgan Securities Inc. collect at
1-212-834-4533, or UBS Securities LLC at 1-877-827-6444, ext. 561
3884.
This
pricing term sheet supplements the preliminary prospectus supplement issued by
Rockwell Collins, Inc. on May 1, 2009 relating to its prospectus dated December
23, 2008.
Any
legends, disclaimers or other notices that may appear below are not applicable
to this communication and should be disregarded. Such legends,
disclaimers or other notices have been automatically generated as a result of
this communication having been sent via Bloomberg or another
system.
Schedule
2
Significant
Subsidiaries
Rockwell
Collins International Holdings S.ar.l.
Rockwell
Collins International Financing S.ar.l.
Rockwell
Collins European Holdings S.ar.l.
