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Exhibit 1
TRW INC.
UNDERWRITING AGREEMENT
New York, New York
Banc of America Securities LLC and
Salomon Smith Barney Inc.,
as Representatives of the
Underwriters named in Schedule II hereto
As of May 23, 2000
Dear Sirs:
TRW Inc., an Ohio corporation (the "Company"), proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), the principal amount of its
securities identified in Schedule I hereto (the "Debt Securities"), to be issued
under an indenture, dated as of May 1, 1986 (the "Indenture"), and supplemented
by a First Supplemental Indenture, dated as of August 24, 1989, a Second
Supplemental Indenture, dated as of June 2, 1999, a Third Supplemental
Indenture, dated as of June 2, 1999, a Fourth Supplemental Indenture, dated as
of June 2, 1999, a Fifth Supplemental Indenture, dated as of June 2, 1999, a
Sixth Supplemental Indenture, dated as of June 23, 1999, and a Seventh
Supplemental Indenture, dated as of June 23, 1999, between the Company and The
Chase Manhattan Bank, as successor trustee (the "Trustee"). The Debt Securities
are also referred to as the "Purchased Securities". If the firm or firms listed
in Schedule II hereto include only the firm or firms listed above, then the
terms "Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange
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Commission (the "Commission") one or more registration statements on such Form
(File Numbers: 333-48433 and 333-89133), including a basic prospectus relating
to such registration statement(s), which have become effective, for the
registration under the Act of offers and sales of debt securities, including
convertible debt securities, warrants to purchase debt securities, common stock,
warrants to purchase common stock, stock purchase contracts or stock purchase
units (the "Securities"), including the Debt Securities, producing aggregate
proceeds of up to $2,500,000,000. Such registration statement(s), as amended at
the date of this Agreement, meet the requirements set forth in Rule
415(a)(1)(ix) or (x) and comply in all other material respects with said Rule.
In connection with the sale of Debt Securities, the Company proposes to file
with the Commission pursuant to Rule 424 a supplement specifying the interest
rates, maturity dates and, if appropriate, other terms of the Debt Securities
sold pursuant hereto and the plan of distribution (the "Prospectus Supplement"
and, together with the Basic Prospectus, the "Prospectus"). Upon the request of
the Representatives, but not without the agreement of the Representatives, the
Company will also file a Rule 462(b) Registration Statement in accordance with
Rule 462(b).
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and at the date of
delivery by the Company of any Debt Securities sold hereunder (a "Closing
Date"), (i) the Registration Statement and any Rule 462(b) Registration
Statement, as amended as of any such time, and the Prospectus, as supplemented
as of any such time, and the Indenture will comply in all material respects with
the applicable requirements of the Act, and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the respective rules and regulations
thereunder; (ii) the Registration Statement and any Rule 462(b) Registration
Statement, as amended as of any such time, did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; and (iii) the Prospectus, as supplemented as of any such time, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information
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contained in or omitted from the Registration Statement or the Prospectus (or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any of you specifically
for use in the Registration Statement or the Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Basic Prospectus" shall mean the form of
basic prospectus relating to the Securities contained in the Registration
Statement at the Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement" shall mean
the registration statement(s) Nos. 333-48433 and 333-89133, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time. "Rule 415", "Rule 424" and "Rule 462(b)" refer to such rules
under the Act. Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Securities Exchange of Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as
the case may be, incorporated therein by reference. "Rule 462(b) Registration
Statement" shall mean a registration statement and any amendments thereto filed
pursuant to Rule 462(b) relating to the offering of the Debt Securities covered
by the Registration Statement.
(d) DUE INCORPORATION AND QUALIFICATION. The Company has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of Ohio with
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corporate power and authority to own, lease and operate its properties and to
conduct the business being conducted by it as described in the Prospectus; and
the Company is duly qualified as a foreign corporation to transact business in
each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify would not have a material adverse effect on the
financial condition or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise; and the Company
is in good standing in the State of California and the Commonwealth of Virginia.
(e) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder and,
when read together and with the other information in the Prospectus, did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were or are made,
not misleading.
(f) FINANCIAL STATEMENTS. The financial statements of the
Company and its consolidated subsidiaries included or incorporated by reference
in the Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their operations for the periods
specified; and except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis.
(g) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth
in the Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, against or
affecting, the Company or any of its subsidiaries, which might, in the opinion
of the Company, result in any material adverse change in the financial position
of the Company and its subsidiaries taken as a whole, or might materially and
adversely affect the assets of the Company and its subsidiaries taken as a
whole; and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
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Registration Statement by the Act or by the rules and regulations thereunder
which have not been so filed.
(h) AUTHORIZATION AND VALIDITY OF THE DEBT SECURITIES. The
Debt Securities have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus, the Debt Securities will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles, and except further as
enforcement thereof may be limited by (i) requirements that a claim with respect
to any Debt Securities denominated other than in United States dollars (or a
foreign currency or currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments in a foreign currency or currency units
or payments outside the United States; the Debt Securities and the Indenture
will be substantially in the form heretofore delivered to the Underwriters and
conform in all material respects to all statements relating thereto contained in
the Prospectus; and the Debt Securities will be entitled to the benefits
provided by the Indenture.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Purchased Securities
set forth opposite such Underwriter's name in Schedule II hereto, except that,
if Schedule I hereto provides for the sale of Purchased Securities pursuant to
delayed delivery arrangements, the respective principal amounts of Purchased
Securities to be purchased by the Underwriters shall be as set forth in Schedule
II hereto, less the respective amounts of Contract Securities determined as
provided below. Purchased Securities to be purchased by the Underwriters are
herein sometimes called the "Underwriters' Securities" and Purchased Securities
to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities".
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If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Purchased Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will use their
reasonable best efforts to make such arrangements and, as compensation therefor,
the Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Purchased Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. The
Company will make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum principal amount set
forth in Schedule I hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts. The principal
amount of Purchased Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Purchased Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you and the Company agree that such reduction shall be
otherwise than in such proportion; provided, however, that the total principal
amount of Purchased Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule II hereto, less the aggregate
principal amount of Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made
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to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks payable in federal or other funds immediately
available in New York City by wire transfer to an account designated by the
Company. Certificates for the Underwriters' Securities shall be registered in
such names and in such denominations as the Representatives may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 p.m. on the business day prior to the Closing Date or
such other time and place as may be agreed by the Company and the
Representatives.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the completion of the distribution of the Purchased
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Prospectus Supplement to be filed with the
Commission pursuant to the applicable paragraph of Rule 424 within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. Upon the request of the Representatives, the Company will
cause the Rule 462(b) Registration Statement, properly completed, to be filed
with the Commission pursuant to Rule 462(b) and will provide evidence
satisfactory to the Representatives of such filing. The Company will promptly
advise the Representatives (i) when the Prospectus shall have been filed with
the Commission pursuant to Rule 424, (ii) when any Rule 462(b) Registration
Statement or any amendment to the Registration Statement relating to the
Securities shall have become effective, (iii) of any request by the Commission
for any amendment of the Registration Statement, any Rule 462(b) Registration
Statement or amendment of or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that
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purpose and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which shall
become effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Prospectus and the Prospectus and any amendments thereof and
supplements thereto, as the Representatives may reasonably request. The Company
will pay the expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by institutional
investors.
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(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any debt securities covered by the Registration
Statement or any other registration statement filed under the Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose shall have been instituted or threatened; and
the Prospectus shall have been filed or mailed for filing with the Commission
not later than 5:00 p.m. New York City time on the business day following the
date hereof.
(b) The Company shall have furnished to the Representatives
the opinion of the General Counsel or an Assistant General Counsel of the
Company, dated the Closing Date to the effect that:
(i) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Ohio with full corporate power and authority to own
its properties and conduct the business now being conducted by
it, as described in the Prospectus, and is duly qualified to
do business as a foreign corporation in each jurisdiction
which requires such qualification wherein it owns or leases
material properties or conducts material business except where
the failure to so qualify would not have a material adverse
effect on the financial condition, or the earnings, business
affairs or business prospects of the Company and its
subsidiaries taken as a whole; and the Company is in good
standing in the State of California and the Commonwealth of
Virginia;
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(ii) the Company's authorized equity capitalization
is as set forth in the Prospectus and the Securities conform
to the description thereof contained in the Prospectus;
(iii) the Indenture has been duly authorized, executed
and delivered by or on behalf of the Company, has been duly
qualified under the Trust Indenture Act and, assuming the
Indenture has been duly authorized, executed and delivered by
the Trustee, constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
except as the enforcement of remedies may be (i) limited by
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws or proceedings affecting the enforcement of
creditors' rights generally from time to time in effect or
(ii) subject to the effect of general principles of equity
whether applied by a court of law or equity; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to Delayed
Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture except as
the enforcement of remedies may be limited by (i) applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws or proceedings affecting the enforcement of creditors'
rights generally from time to time in effect or (ii) subject
to the effect of general principles of equity whether applied
by a court of law or equity;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit,
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which is not described or filed as required; and the
statements included or incorporated in the Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(v) the Registration Statement has become effective
under the Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement, as amended, has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement, the Prospectus and each amendment
thereof or supplement thereto as of their respective effective
or issue dates (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) complied as to
form in all material respects with the applicable requirements
of the Act and the rules thereunder; the documents filed by
the Company under the Exchange Act and incorporated by
reference into the Registration Statement as of their
respective filing dates (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion)
complied as to form in all material respects with the
applicable requirements of the Exchange Act and the rules
thereunder; and such counsel has no reason to believe that the
Registration Statement, or any amendment thereof, at the
Effective Date or at the Execution Time and, as amended, at
the date of this Agreement, contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented, includes any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that such
counsel need express no opinion as to (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, (B) the financial statements and
other financial and statistical information contained in the
Registration
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Statement or Prospectus or (C) the information contained in or
omitted from the Registration Statement or any amendment
thereof or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement or any amendment thereof or the Prospectus or any
amendment thereof or supplement thereto;
(vi) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Purchased Securities by the Underwriters
and such other approvals (specified in such opinion) as have
been obtained;
(viii) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the Amended Articles
of Incorporation or Regulations of the Company or the terms of
any indenture, other agreement or instrument known to such
counsel and to which the Company is a party or bound, or any
order or regulation known to such counsel to be applicable to
the Company of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company; and
(ix) to the best knowledge of such counsel, no
holders of securities of the Company have rights to the
registration of such securities under the Registration
Statement.
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In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Ohio or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters; and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
(c) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by two executive officers of the Company, one
of whom shall be the principal financial officer, treasurer or controller of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus
and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether
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or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Prospectus.
(e) At the Closing Date, Ernst & Young LLP shall have
furnished to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Prospectus
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive
committees of the Company; and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent financial statements incorporated in the Registration
Statement, as amended, and the Prospectus, as amended or
supplemented, nothing came to their attention which caused
them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply as to form
in all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or
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incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified
date not more than five business days prior to the
date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the shareholders' investment
of the Company as compared with the amounts shown on
the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the
Prospectus, or for the period from the date of the
most recent financial statements incorporated in the
Registration Statement and the Prospectus to such
specified date there were any decreases, as compared
with the corresponding period in the preceding year,
in net sales and other income, in earnings from
continuing operations before income taxes or in total
or per share amounts (primary and fully diluted) of
earnings from continuing operations or net earnings,
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives;
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial
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statements included or incorporated in the
Registration Statement and the Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement, as amended,
and the Prospectus, as amended or supplemented, and in Exhibit
12 to the Registration Statement, including the information
included or incorporated in Item 1 (excluding information
relating to backlog) and Items 6 and 7 of the Company's Annual
Report on Form 10-K incorporated therein, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Report on Form 10-Q,
incorporated in the Registration Statement and the Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Registration Statement and the Prospectus in
this paragraph (e) are to such documents as amended and supplemented at
the date of the letter.
In addition, except as provided in Schedule I hereto, at the
time this Agreement is executed, Ernst & Young LLP shall have furnished
to the Representatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the Representatives,
to the effect set forth above.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been (i) any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and its subsidiaries, taken as a whole, the effect of which in any
case referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Purchased
<PAGE> 17
17
Securities as contemplated by the Registration Statement and the Prospectus.
(g) Subsequent to the execution of this Agreement, the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of this Agreement shall not have been
lowered nor shall any such rating agency have publicly announced that it has
placed any debt securities of the Company on what is commonly termed a "watch
list" for possible downgrading.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Purchased Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities but the Company shall be under no further liability
to the Underwriters with respect to such Securities except as provided in
Section 7 hereof.
<PAGE> 18
18
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several (including
amounts paid in settlement of any litigation if such settlement is effected with
the written consent of the Company), to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the Basic Prospectus or
the Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to the Basic Prospectus or any
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus (as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Prospectus was corrected in the Prospectus
(as amended or supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of
<PAGE> 19
19
its officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party, under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party,
otherwise than under this Section 7. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party, or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel,
<PAGE> 20
20
approved by the Representatives in the case of paragraph (a) of this Section 7,
representing the indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Purchased Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other in connection with the
offering of the Purchased Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Purchased
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters in respect
thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
<PAGE> 21
21
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Purchased Securities underwritten and distributed to the
public by such Underwriter were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several, in proportion to the
respective principal amounts of Purchased Securities purchased by each of such
Underwriters, and not joint.
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Purchased Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Purchased Securities set forth opposite their names in Schedule II hereto
bears to the aggregate amount of Purchased Securities set forth opposite their
names of all the remaining Underwriters) the Purchased Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Purchased Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Purchased Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Purchased
Securities, and if such nondefaulting Underwriters do not
<PAGE> 22
22
purchase all the Purchased Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effective. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. An Underwriter may terminate this Agreement,
immediately upon notice to the Company, at any time prior to the Closing Date
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement, any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect of which
is, in the judgment of the Representatives, impracticable to market the Debt
Securities or enforce contracts for the sale of the Debt Securities, or (ii) if
there shall have occurred any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis, the effect of which shall be such
as to make it, in the judgment of the Representatives, impracticable to market
the Debt Securities or enforce contracts for the sale of the Debt Securities, or
(iii) if trading in any securities of the Company shall have been suspended by
the Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium shall have been declared by either Federal
or New York authorities or if a banking moratorium shall have been declared by
the relevant authorities in the country or countries of origin of any foreign
currency or currencies in which the Debt Securities are denominated or payable,
or (iv) if the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of this Agreement
shall have been lowered since that date or if any such rating agency shall have
<PAGE> 23
23
publicly announced that it has placed any debt securities of the Company on what
is commonly termed a "watch list" for possible downgrading, or (v) if there
shall have come to the attention of such Underwriter any facts that would cause
you to believe that the Prospectus, at the time it was required to be delivered
to a purchaser of Debt Securities, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time of
such delivery, not misleading.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Purchased Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telecopied (with confirmation of receipt) to them, at the
address specified in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telecopied (with confirmation of receipt) to it at 1900
Richmond Road, Cleveland, Ohio 44124, attention of the Secretary (facsimile
number (216) 291-7255).
12. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
<PAGE> 24
24
Very truly yours,
TRW INC.
By: /s/ William B. Lawrence
-------------------------------------
Name: William B. Lawrence
Title: Executive Vice President,
General Counsel and Secretary
<PAGE> 25
25
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
----------------------------------
Name: Lily Chang
Title: Principal
SALOMON SMITH BARNEY INC.
By: /s/ Caesar F. Sweitzer
----------------------------------
Name: Caesar F. Sweitzer
Title: Managing Director
For themselves and the other several
Underwriters named in Schedule II to the
foregoing Agreement.
<PAGE> 26
SCHEDULE I
Underwriting Agreement dated May 23, 2000
Registration Statement Nos. 333-48433 and 333-89133
Representatives: Banc of America Securities LLC and
Salomon Smith Barney Inc.
Notice Addresses for Underwriters:
Banc of America Securities LLC
100 North Tryon Street, 7th Floor
Charlotte, NC 28255
Facsimile: (704) 388-9939
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Facsimile: (212) 816-7912 (Attention: General Counsel)
Title, Purchase Price, Currency and Description of Debt Securities:
Title: 8 3/4% Notes due 2006
Principal amount and currency: $500,000,000
Purchase price and currency (include accrued interest or amortization,
if applicable): 98.674%
Offering price and currency (include accrued interest or amortization,
if applicable): 99.299%
Sinking fund provisions: None
Redemption provisions: Make-whole call
Closing Date, Time and Location: May 26, 2000, 10:00 a.m., at the offices of
Cravath, Swaine & Moore in New York City.
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(e) at the time this Agreement is
executed: No letter shall be required from Ernst & Young LLP pursuant
to the last paragraph of Section 5(e).
<PAGE> 27
SCHEDULE II
UNDERWRITERS PRINCIPAL AMOUNT
OF SECURITIES TO
BE PURCHASED
Banc of America Securities LLC $170,000,000
Salomon Smith Barney Inc. $170,000,000
Chase Securities Inc. $25,000,000
Goldman, Sachs & Co. $25,000,000
J.P. Morgan Securities Inc. $25,000,000
Morgan Stanley & Co. Incorporated $25,000,000
Banc One Capital Markets, Inc. $15,000,000
Blaylock & Partners, L.P. $15,000,000
McDonald Investments Inc. (A KeyCorp Company) $15,000,000
Mellon Financial Markets, LLC $15,000,000
------------
Total $500,000,000
============
<PAGE> 28
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 200
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from TRW Inc. (the
"Company"), and the Company agrees to sell to the undersigned, on _________,
____, (the "Delivery Date"), [specified currency and amount] principal amount of
the Company's ___________ (the "Securities") offered by the Company's Basic
Prospectus dated _________, ____, and related Prospectus Supplement dated
_________, ____, receipt of a copy of which is hereby acknowledged, at a
purchase price of ____% of the principal amount thereof, plus accrued if any,
thereon from _________, ____, to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM on the Delivery Date to or upon the order of
the Company in federal or other funds immediately available in New York City, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the
<PAGE> 29
2
Delivery Date, shall be subject to the conditions (and neither party shall incur
any liability by reason of the failure thereof) that (1) the purchase of
Securities to be made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not on the Delivery Date
be prohibited under the laws of the jurisdiction to which the undersigned is
subject, and (2) the Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Underwriting Agreement
referred to in the Basic Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
<PAGE> 30
3
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
(Name of Purchaser)
by________________________________
(Signature and Title of Officer)
(Address)
Accepted:
TRW Inc.
By__________________________
(Authorized Signature)
